Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date), such Issuing Bank shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments of the Participants pursuant to Section 12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning and assignee Participant. (b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability to any Participant. (c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment. (d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation. (e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant. (f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and (viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments. (g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions; (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 (Interlake Corp)
Letter of Credit Participations. (aA) Immediately upon the issuance by any the Issuing Bank Lender of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters of Credit existing on such date), such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender (other than such the Issuing Bank Lender in its capacity (if any) as a Lender) and each such other Bank Lender (in such capacityits capacity under this SECTION 3.4, as a "ParticipantPARTICIPANT"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's PercentagePro Rata Share, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments of the Participants Lenders or Pro Rata Shares of the Lenders pursuant to Section 12.04SECTION 2.9 or SECTION 11.6, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 SECTION 3.4 to reflect the new Percentages Pro Rata Shares of the assigning assignor and assignee ParticipantLender, as the case may be.
(bB) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such the Issuing Bank Lender under or in connection with any Letter of Credit if issued by it shall not create for the Issuing Lender any resulting liability to 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, shall not create for such Issuing Bank any resulting liability to any Participantmisconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(cC) In the event that any the Issuing Bank 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 the Issuing Bank Lender pursuant to Section 2.05(a3.5(A), such the Issuing Bank Lender shall promptly notify Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's Percentage Pro Rata Share of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank Agent so notifies, prior to 11:00 A.M. (New York time) 12:00 noon on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of Issuing Lender in Dollars such Issuing Bank the Participant's Percentage Pro Rata Share 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 Percentage Pro Rata Share of the amount of such payment available to such the Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Prime Rate Loans for each day thereafter. The failure of any Participant to make available to any the Issuing Bank Lender its Percentage Pro Rata Share of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such the Issuing Bank Lender its Percentage Pro Rata Share 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 the Issuing Bank Lender such other Participant's Percentage Pro Rata Share of any such payment.
(dD) Whenever any the Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause CLAUSE (cC) above, such the Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its Pro Rata Share thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(eE) Upon the request of any Participant, each respective the Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(gF) The obligations of the Participants to make payments to any the Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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:
(iI) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(iiII) the existence of any claim, setoff, defense or other right which the Borrower any Credit Party or any Subsidiary of any Credit Party 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 Documentation Agent, any Issuing BankParticipant, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between any Credit Party or any Subsidiary of any Credit Party and the beneficiary named in any such Letter of Credit);
(iiiIII) 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;
(ivIV) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(vV) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Weider Nutrition International Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit (or upon Credit, but subject to Section 2C.03 to the Second Restatement Effective Date extent applicable in the case of Non-Dollar Denominated Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank CL Lender (each such other Bank Lender with respect to any Letter of Credit, in such capacityits capacity under this Section 2A.04, as "a “L/C Participant"”), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participationparticipation (each an “L/C Participation”), in a percentage equal to the extent of such L/C Participant's Percentage, ’s CL Percentage in such Letter of Credit of such Issuing BankCredit, and each substitute letter of credit, each drawing Drawing made thereunder and the obligations of the Borrower respective Account Party under this Agreement with respect thereto, thereto (although CL Facility Fees shall be payable directly to the Administrative Agent for the account of the CL Lenders as provided in Section 3.01(a) and the L/C Participants shall have no right to receive any portion of any Facing Fees or any administration fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Credit-Linked Commitments and, as a result thereof, the CL Percentages of the Participants CL Lenders pursuant to Section 12.041.13, or 13.04, it is hereby agreed that, that with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2A.04 to reflect the new CL Percentages of the assigning CL Lenders. With respect to each Letter of Credit from time to time outstanding, all calculations of the percentage participations therein of the various CL Lenders shall be made from time to time by the Administrative Agent, which calculations shall be conclusive absent manifest error. Furthermore, upon the occurrence of a Sharing Event and assignee Participantas more fully set forth in Section 1.14, additional sub-participations may be required to be granted by the various CL Lenders in their participations in outstanding Letters of Credit, in each case in accordance with, and subject to the provisions of, Section 1.14.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Lender shall not have any no obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank 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 misconductmisconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision), shall not create for such Issuing Bank Lender any resulting liability to any ParticipantAccount Party or any Lender.
(c) In the event that any Issuing Bank Lender makes any payment or disbursement under any Letter of Credit issued by it and the Borrower respective Account Party shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a)2A.05(a) by the date required by said Section 2A.05(a) for such reimbursement, such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant therein and the Deposit Bank of such failure, and each Participant shall promptly CL Lender (including in its capacity as an L/C Participant) hereby irrevocably authorizes the Deposit Bank (and unconditionally pay the Deposit Bank hereby agrees) to reimburse such Issuing Lender for such amount in Dollars (or, to the extent that the respective Unpaid Drawing is in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof, as determined by the Administrative Agent for on the account date on which such payment or disbursement was made under the respective Letter of Credit) solely from such Issuing CL Lender’s CL Percentage of the Credit-Linked Deposits on deposit with the Deposit Bank in the Credit-Linked Deposit Account, in which case the Total Credit-Linked Commitment shall be reduced by the amount so applied (with a corresponding reduction in the Credit-Linked Commitment of the Participant's each CL Lender equal to such CL Lender’s CL Percentage of such unreimbursed payment in Dollars and in same day funds. If aggregate amount so applied); provided that any Issuing Bank so notifies, prior portion of the Unpaid Drawings with respect to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Non-Dollar Denominated Letter of Credit, such Participant shall make available to the Administrative Agent for the account which, because of such Issuing Bank the Participant's Percentage currency fluctuations, represents amounts in excess of the amount of such payment on such Business Day Total Credit-Linked Deposits (as more fully described in same day funds. If and to the extent such Participant Section 2C.03), shall not have so made its Percentage be reimbursed from Credit-Linked Deposits but shall instead be immediately repaid by the respective Account Party. Furthermore, if any Specified Default or any Event of Default then exists, the amount of such payment available to such respective Issuing BankLender may, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available respect to any Issuing Bank its Percentage of any payment or disbursement made by it under any Letter of Credit shall not relieve any other Participant of its obligation hereunder Credit, request the Deposit Bank, in which case each CL Lender hereby irrevocably authorizes the Deposit Bank (and the Deposit Bank hereby agrees), to make available to reimburse the Issuing Lender, solely from such Issuing Bank its CL Lender’s CL Percentage of the Credit-Linked Deposits on deposit in the Credit-Linked Deposit Account with the Deposit Bank, for any payment Drawing under any such Letter of Credit on as provided in the immediately preceding sentence (notwithstanding 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 Bank such other Participant's Percentage reimbursement of any such paymentDrawings by the date required by Section 2A.05(a)), in which case the Total Credit-Linked Commitment shall be reduced by the amount so applied as otherwise provided in the immediately preceding sentence, and any amounts actually received pursuant to Section 2A.05(a) shall be applied to reimburse L/C Participants as provided in following Section 2A.04(d).
(d) Whenever any Issuing Bank Lender receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Issuing Lender any payments from any Participant the L/C Participants (or from the Deposit Bank on their behalf) pursuant to clause (cSection 2A.04(c) above, such Issuing Bank shall Lender shall, after paying itself any amounts owing to it as described in Section 2C.03 in the case of payments received with respect to Non- Dollar Denominated Letters of Credit, pay (in same day funds in Dollars) to the Administrative Agent for (and the account of such Participant, in Dollars and Administrative Agent shall promptly pay (in same day funds, funds in Dollars) to each L/C Participant which has paid its relevant CL Percentage thereof) an amount equal to such L/C Participant’s share (based on the Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon Each Issuing Lender shall, promptly after the request issuance of, or amendment or modification to, a Standby Letter of any 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, each respective Issuing Bank in writing, of such issuance, amendment or modification and if any L/C Participant shall so request, the Administrative Agent shall furnish to said L/C Participant with a copy of such Participant copies of any Standby Letter of Credit issued by it and Credit, such other documentation amendment or such modification, as the case may reasonably be requested by such Participantbe.
(f) As between Each Issuing Lender (other than DBAG) shall deliver to the Borrower Administrative Agent and the respective Issuing Deposit Bank, promptly on the Borrower assumes all risks first Business Day of each week, by facsimile transmission, the acts and omissions of, or misuse of aggregate daily Stated Amount available to be drawn under the outstanding Trade Letters of Credit issued by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible Lender for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsprevious week.
(g) The obligations of the L/C Participants to make payments to any the Administrative Agent for the account of the respective Issuing Bank 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 the Borrower 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), the Administrative Agent, the Documentation any Agent, any Issuing BankLender, any BankIssuing Lender, any Participant L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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; provided that the L/C Participants shall not be obligated to reimburse such Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of deliberate acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). 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 (Dole Food Co Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank shall be deemed to have sold and transferred to each Bank Lender with a Revolving Loan Commitment, other than such Issuing Bank (each such other Bank Lender, in such capacityits capacity under this Section 2.03, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Adjusted Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect theretothereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Participants as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees with respect to such Letters of Credit), and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or Adjusted Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04 or as a result of a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.03 to reflect the new Adjusted Percentages of the assigning assignor and assignee ParticipantLender or of all Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled Subject to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations provisions of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank any resulting liability to any ParticipantCredit Party or any Lender.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a2.04(a), such Issuing Bank shall promptly notify the Administrative Agent, which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the such Participant's Adjusted Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the in Dollars such Participant's Adjusted Percentage 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 Adjusted Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any such Issuing Bank its Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Adjusted 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 Bank such other Participant's Adjusted Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank shall pay forward such payment to the Administrative Agent for the account of such ParticipantAgent, which in turn shall distribute to each Participant which has paid its Adjusted Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agent, any Issuing Bank, any BankParticipant, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower 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.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank a Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 2.03, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each, a "participation"), to the extent of such Participant's PercentageAdjusted Percentage (with each such purchase by a Lender (other than a Non-Extending Lender) to applied as a utilization of the Short-Term Commitment and Long-Term Commitment of such Lender on a pro rata basis (based upon the relative amounts of the Short-Term Commitment and the Long-Term Commitment of such Lender, in each case as in effect immediately before giving effect to such purchase)), in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor that remains in effect after the Original Effective Date, or guaranty pertaining thereto. Upon the request thereto (although Letter of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, Credit Fees will be paid directly to the Administrative Agent or for the Collateral Agent but ratable account of the Participants as provided in Section 3.01(c) and the Participants shall have no right to receive any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by portion of any Bank in such security interests and guarantiesFacing Fees). Upon any change in the Commitments (and the Short-Term Commitments and Long-Term Commitments, if any) of the Participants Lenders pursuant to Section 1.15 or 12.04, the termination of a Commitment of a Non-Continuing Lender or the occurrence of any Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.03 to reflect the new Adjusted Percentages of the assigning assignor and assignee ParticipantLender, of all Continuing Lenders or of all Non-Defaulting Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer issuing same shall not have any no obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank a Letter of Credit Issuer 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, shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank Letter of Credit Issuer 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 Bank Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent and each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's Adjusted Percentage of such unreimbursed payment in Dollars lawful money of the United States of America and in same day fundsfunds (with each such payment by a Lender (other than a Non-Extending Lender) to applied as a utilization of the Short-Term Commitment and Long-Term Commitment of such Lender on a pro rata basis (based upon the relative amounts of the Short-Term Commitment and the Long-Term Commitment of such Lender, in each case as in effect immediately before giving effect to such payment)); provided, however, that no Participant shall be obligated to pay to the Administrative Agent for the account of such Letter of Credit Issuer its Adjusted Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence as determined by a court of competent jurisdiction on the part of such Letter of Credit Issuer. If any Issuing Bank such Letter of Credit Issuer so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer such Participant's Adjusted Percentage 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 Adjusted Percentage of the amount of such payment available to the Administrative Agent for the account of such Issuing BankLetter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter of Credit Issuer, forthwith on demand such amount, together with interest thereon, thereon for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the applicable Letter of Credit Issuer its Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer its Adjusted 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 Bank the Administrative Agent such other Participant's Adjusted Percentage of any such payment.
(d) Whenever any Issuing Bank Letter of Credit Issuer receives a payment in respect of a an unpaid reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the Participants pursuant to the preceding clause (c) above), such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account Administrative Agent shall promptly pay to each Participant which has paid its Adjusted Percentage of such Participantreimbursement obligation, in Dollars lawful money of the United States of America and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuers with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (except as expressly provided in Section 2.03(c)) 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which 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 Documentation Agentany Letter of Credit Issuer, any Issuing BankLender, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 the 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; or
(vi) the failure of any condition precedent set forth in Section 5 hereof to have been satisfied at the time of the issuance of any Letter of Credit unless the applicable Letter of Credit Issuer shall have received a notice in writing to such effect from the Required Lenders pursuant to Section 2.01(b)(iv) hereof prior to the issuance of such Letter of Credit.
Appears in 1 contract
Samples: Credit Agreement (Rj Reynolds Tobacco Holdings Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in its capacity under this Section 2.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate appli-cable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to any an Issuing Bank Lender its RL Percentage of any payment pay-ment 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the respective Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification qualifi-ca-tion 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 circumstancescircum-stances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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 state-ment therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance oxxxx-xxxxx 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 (RCN Corp /De/)
Letter of Credit Participations. (a) Immediately upon the issuance by any the respective Issuing Bank of any Letter of Credit (or upon on the Second Restatement Effective Date in the case of with respect to Existing Letters of Credit existing on such date)Credit, such Issuing Bank shall be deemed to have sold and transferred to each Bank with a Revolving Loan Commitment, other than such Issuing Bank (each such other Bank Bank, in such capacityits capacity under this Section 1A.04, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, Percentage in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments of the Participants Banks pursuant to Section 12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 1A.04 to reflect the new Percentages of the assigning assignor and assignee ParticipantBank or of all Banks with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank shall not have any obligation relative to the Participants other Banks 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability to the Borrower or any ParticipantBank.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such the Issuing Bank pursuant to Section 2.05(a1A.05(a), such Issuing Bank shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the such Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office of the Administrative Agent for the account of such Issuing Bank the in Dollars such Participant's Percentage 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 Percentage of the amount of such payment available to the Administrative Agent for the account of such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any the Administrative Agent for the account of such Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank its 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 the Administrative Agent for the account of such Issuing Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Issuing Bank any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay each Participant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage share (based on the proportionate aggregate amount funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any the Administrative Agent for the account of each Issuing Bank with respect to Letters of Credit issued shall be irrevocable and not subject to any 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 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 Documentation AgentAgents, any Issuing BankParticipant, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by any Issuing Bank a Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Bank, and each such Participant RL Bank (each, a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Adjusted RL Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter Letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the XX Xxxxx as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees with respect to such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or the Adjusted RL Percentages of the Participants XX Xxxxx pursuant to Section 12.041.13 or 13.04(b) or as a result of a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.03 to reflect the new Adjusted RL Percentages of the assigning and assignee ParticipantBank or of all XX Xxxxx, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank no Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank any Letter of Credit Issuer 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, shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank Letter of Credit Issuer 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 Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's Adjusted RL Percentage of such unreimbursed payment in U.S. Dollars and in same day funds. If the Administrative Agent so notifies any Issuing Bank so notifies, Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Letter of Credit Issuer such Issuing Bank the Participant's Adjusted RL Percentage of the amount of such payment on such Business Day in same day fundsfunds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Participant shall make such payment on the immediately following Business Day). If and to the extent such Participant shall not have so made its Adjusted RL Percentage of the amount of such payment available to such Issuing Bankthe Administrative Agent for the account of the respective Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer its Adjusted RL Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer its applicable Adjusted RL Percentage of any payment under any such 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 the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer such other Participant's Adjusted RL Percentage of any such payment.
(d) Whenever any Issuing Bank Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its Adjusted RL Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to the such Participant's Adjusted RL Percentage of such payment the principal amount thereof and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon Each Letter of Credit Issuer shall, promptly after each issuance of, or amendment or modification to, a Standby Letter of Credit issued by it, give the Administrative Agent, each Participant and the Borrower written notice of the issuance of, or amendment or modification to, such Standby Letter of Credit. The Administrative Agent shall, upon request of from any Participant, each respective Issuing Bank shall furnish to such Participant copies of any each such Standby Letter of Credit issued by it and each such other documentation as may reasonably be requested by such Participantamendment or modification thereto.
(f) As between Each Letter of Credit Issuer (other than BTCo) shall deliver to the Borrower and Administrative Agent, promptly on the respective Issuing Bankfirst Business Day of each week, by facsimile transmission, the Borrower assumes all risks of aggregate daily Stated Amount available to be drawn under the acts and omissions of, or misuse of the outstanding Trade Letters of Credit issued by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports Issuer for the previous week. The Administrative Agent shall, within 10 days after the last Business Day of each calendar month, deliver to comply with each Participant a report setting forth for such preceding calendar month the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove aggregate daily Stated Amount available to be in any and drawn under all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter outstanding Trade Letters of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any during such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentscalendar month.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the 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, the Documentation any Agent, any Issuing BankLetter of Credit Issuer, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower 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 the 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
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Bank, and each such Participant Bank (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bankthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantBank's Adjusted Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Banks as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments or Adjusted Percentages of the Participants Banks pursuant to Section 12.0412.04(b) or upon a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.05 to reflect the new Adjusted Percentages of the assigning and assignee ParticipantBank or of all Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank the Letter of Credit Issuer under or in connection with any Letter of Credit Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability to any Participantthe Participants.
(c) In the event that any Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer, the amount of the such Participant's Adjusted Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Adjusted Percentage of such unreimbursed amount for 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. If the Administrative Agent so notifies any Issuing Bank so notifies, Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer such Issuing Bank the Participant's Adjusted Percentage 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 Adjusted Percentage of the amount of such payment Unpaid Drawing available to such Issuing Bankthe Administrative Agent for the account of the Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe 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 such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer its Adjusted Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer its Adjusted 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 Bank the Administrative Agent for the account of the Letter of Credit Issuer such other Participant's Adjusted Percentage of any such payment.
(d) Whenever any Issuing Bank the Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of the Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its Adjusted Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Adjusted Percentage of such payment the principal amount thereof and interest thereon accruing at the overnight Federal Funds Effective Rate after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Participant shall be required to make payments resulting from the Letter of Credit Issuer's gross negligence or willful misconduct) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which 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 Documentation AgentLetter of Credit Issuer, any Issuing Bank, any Bank, any Participant Bank or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 the Letter of Credit proving to be forged, fraudulent, or 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
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Lender of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters of Credit existing on such date), such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender, other than such the Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under Section 2.19, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's PercentageRatable Portion, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect theretothereto (excluding the Facing Fee), and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Credit Commitments of the Participants pursuant to Section 12.04Lenders, it is hereby agreed that, with respect to all any outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.19 to reflect the new Percentages Ratable Portions of the assigning and assignee ParticipantLenders.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Lender shall not have any no obligation relative to the 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 comply on their face with the requirements of such Letter of Credit. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such the Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank Lender any resulting liability to the Borrower or any ParticipantLender.
(c) In the event that any the Issuing Bank Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such the Issuing Bank Lender pursuant to Section 2.05(a2.20(a), such the Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's Percentage Ratable Portion of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies any Issuing Bank so notifies, Participant prior to 11:00 11: 00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available such funds to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage of the amount of such payment Lender on such Business Day in same day fundsDay. If and to the extent such Participant shall not have so made its Percentage Ratable Portion of the amount of such payment available to such the Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Bank Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to any the Issuing Bank Lender its Percentage Ratable Portion of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such the Issuing Bank Lender its Percentage Ratable Portion of any payment under any such 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 the Issuing Bank Lender such other Participant's Percentage Ratable Portion of any such payment.
(d) Whenever any the Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, the Issuing Lender shall forward such Issuing Bank shall pay payment to the Administrative Agent for Agent, which in turn shall distribute such funds to each Participant in accordance with the account terms of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligationSection 2.13.
(e) Upon the request of any Participant, each respective the Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any the Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any 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 other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation AgentIssuing Lender, any Issuing BankParticipant, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 Loan Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred trans- ferred to each Bank Lender with a Revolving Loan Commitment, other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 2.03, as a "ParticipantPARTICIPANT"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Adjusted Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect theretothereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Participants as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees with respect to such Letters of Credit), and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or Adjusted Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04 or as a result of a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.03 to reflect the new Adjusted Percentages of the assigning assignor and assignee ParticipantLender or of all Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled Subject to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations provisions of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Lender any resulting liability to any ParticipantCredit Party or any Lender.
(c) In the event that any Issuing Bank Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a2.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's Adjusted Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Lender in Dollars such Participant's Adjusted Percentage 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 Adjusted Percentage of the amount of such payment available to such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to any such Issuing Bank Lender its Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank Lender its Adjusted 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 Bank Lender such other Participant's Adjusted Percentage of any such payment.
(d) Whenever any Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent for the account of such ParticipantAgent, which in turn shall distribute to each Participant which has paid its Adjusted Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Issuing Lender, any Issuing BankParticipant, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower 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.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank Revolving Lender (each such other Bank Lender, in such capacityits capacity under this Section 2.04, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bankthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, Revolving Percentage in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments Revolving Credit Commitment of the Participants Revolving Lenders pursuant to Section 1.13 or 12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Revolving Percentages of the assigning assignor and assignee ParticipantLender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any no obligation relative to the respective 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 substantially comply on their face with the requirements of such Letter of Credit. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank the Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability to the Borrower or any ParticipantLender.
(c) In the event that any Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer the amount of the such Participant's Revolving Percentage of such unreimbursed payment in U.S. Dollars and in same day funds. If any Issuing Bank the Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer in U.S. Dollars such Issuing Bank the Participant's Revolving Percentage 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 Revolving Percentage of the amount of such payment available to such Issuing Bankthe Agent for the account of the Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe 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 such Issuing Bank the Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank the Agent for the account of the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank the Agent for the account of the Letter of Credit Issuer its Revolving 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 Bank the Agent for the account of the Letter of Credit Issuer such other Participant's Revolving Percentage of any such payment.
(d) Whenever any Issuing Bank the Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Agent has received for the account of the Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent for the account of such Participanteach Participant which has paid its Revolving Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to the such Participant's Revolving Percentage (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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be unconditional and 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation AgentAgent for the account of the Letter of Credit Issuer, any Issuing BankParticipant, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, any other Credit Document, the transactions contemplated herein or therein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any of its Subsidiaries on the one hand and the beneficiary named in any such Letter of Credit on the other hand);
(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 DefaultDefault unless the Letter of Credit Issuer shall have issued any such Letter of Credit in disregard of a notice received from the Required Lenders of the type described in the penultimate sentence of Section 2.03(b).
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Revolving Lender, and each such Participant Revolving Lender (in its capacity under Section 2.03(b) and under this Section 2.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, ’s RL Percentage in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments RL Percentages of the Participants Revolving Lenders pursuant to Section 12.041.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning and assignee Participantrespective Revolving Lender or Revolving Lenders.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the Participants other Revolving 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(ci) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each relevant Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 such Participant to make available to any an Issuing Bank Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any such other Participant of its obligation hereunder to make available to such Issuing Bank Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no such Participant shall be responsible for the failure of any such other Participant to make available to such Issuing Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the respective Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such Participant, Participant which has paid its RL Percentage in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all such Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the funding of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Magellan 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between Magellan or any Subsidiary of Magellan 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
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RC Lender, and each such Participant RC Lender (each, a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Adjusted RC Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the RC Lenders as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Commitments or Adjusted RC Percentages of the Participants RC Lenders pursuant to Section 12.0412.04(b) or upon a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.05 to reflect the new Adjusted RC Percentages of the assigning and assignee ParticipantRC Lender or of all RC Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to strictly comply on their face with the requirements of such Letter of Credit. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank the Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer, the amount of the such Participant's Adjusted RC Percentage of such unreimbursed payment in Dollars U.S. dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Adjusted RC Percentage of such unreimbursed amount for 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. If the Administrative Agent so notifies any Issuing Bank so notifies, Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer such Issuing Bank the Participant's Adjusted RC Percentage 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 Adjusted RC Percentage of the amount of such payment Unpaid Drawing available to such Issuing Bankthe Administrative Agent for the account of the Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe 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 such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer its Adjusted RC Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer its Adjusted RC 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 Bank the Administrative Agent for the account of the Letter of Credit Issuer such other Participant's Adjusted RC Percentage of any such payment.
(d) Whenever any Issuing Bank the Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of the Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its Adjusted RC Percentage thereof, in Dollars U.S. dollars and in same day funds, an amount equal to the such Participant's Adjusted RC Percentage of such payment the principal amount thereof and interest thereon accruing at the overnight Federal Funds Effective Rate after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set- off or other defense or any other qualification or exception whatsoever (provided that no Participant shall be required to make payments resulting from the Administrative Agent's gross negligence or willful misconduct) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the 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, the Documentation AgentLetter of Credit Issuer, any Issuing Bank, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 the 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.
(f) To the extent the Letter of Credit Issuer is not indemnified by the Borrower, the Participants will reimburse and indemnify the Letter of Credit Issuer, in proportion to their respective "percentages" of the Total Revolving Commitment, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Letter of Credit Issuer in performing its respective duties in any way relating to or arising out of its issuance of Letters of Credit; provided that no Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Letter of Credit Issuer's gross negligence or willful misconduct.
Appears in 1 contract
Samples: Credit Agreement (Hci Direct Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any the respective Issuing Bank of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank shall be deemed to have sold and transferred to (i) in the case of a Dollar Letter of Credit, each Bank RL Lender (other than such Issuing Bank Bank) and (ii) in the case of an Alternate Currency Letter of Credit, each Alternate Currency RL Lender (other than an Issuing Bank) with an Alternate Currency Revolving Loan Sub-Commitment relating to the respective Alternate Currency Revolving Loan Sub-Tranche under which such Alternate Currency Letter of Credit was issued (each such other Bank Lender with respect to any Letter of Credit, in such capacityits capacity under this Section 2.04, as "a “Participant"”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation, in a percentage equal to (x) in the extent case of a Dollar Letter of Credit, such Participant's ’s Dollar Percentage or (y) in the case of an Alternate Currency Letter of Credit, such Participant’s relevant Alternate Currency RL Percentage, in such Dollar Letter of Credit or Alternate Currency Letter of such Issuing BankCredit, each substitute letter of creditas the case may be, each drawing or payment made thereunder and the obligations of the Borrower respective Account Party under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request thereto (although Letter of the Administrative Agent or the Required Banks, such Issuing Bank Credit Fees shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, be paid directly to the Administrative Agent for the account of the RL Lenders or the Collateral Agent but relevant Alternate Currency RL Lenders as provided in Section 3.01(b) and the Participants shall have no right to receive any failure portion of any Facing Fees with respect to make any such transfer Letters of Credit); provided that, upon the occurrence of a Sharing Event, the participations described above shall not restrict be automatically adjusted so that each RL Lender shall have a participation in all then outstanding Letters of Credit (whether a Dollar Letter of Credit or impair an Alternate Currency Letter of Credit), and related obligations as described above, in a percentage equal to its RL Percentage (which adjustments shall occur concurrently with the rights held pursuant to this Agreement by any Bank adjustments described in such security interests and guarantiesSection 1.17). Upon any change in the Commitments Revolving Loan Commitments, Non-Alternate Currency Revolving Loan Sub-Commitments, Alternate Currency Revolving Loan Sub-Commitments, Dollar Percentages or relevant Alternate Currency RL Percentages of the Participants RL Lenders pursuant to Section 12.04this Agreement (or in the circumstances provided in the proviso to the immediately preceding sentence, the RL Percentages of the RL Lenders pursuant to this Agreement), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Dollar Percentages or relevant Alternate Currency RL Percentages or, in the circumstances described in the proviso to the immediately preceding sentence, the RL Percentages of the assigning and assignee Participantvarious RL Lenders.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank shall not have any no obligation relative to the Participants or any 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconductmisconduct (as finally determined by a court of competent jurisdiction), shall not create for such Issuing Bank any resulting liability to any ParticipantAccount Party, any other Credit Party, any Lender or any other Person.
(c) In the event that If any Issuing Bank makes any payment under any Letter of Credit and the Borrower respective Account Party shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account benefit of such Issuing Bank the amount of such Participant’s Dollar Percentage (in the Participant's case of a Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of such unreimbursed payment in Dollars (or, in the case of an Alternate Currency Letter of Credit, at any time prior to the occurrence of a Sharing Event, the Alternate Currency in which such Alternate Currency Letter of Credit is denominated) and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account benefit of such Issuing Bank Bank, in Dollars (or, in the case of an Alternate Currency Letter of Credit, at any time prior to the occurrence of a Sharing Event, the Alternate Currency in which such Alternate Currency Letter of Credit is denominated), such Participant's ’s Dollar Percentage (in the case of a Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of the amount of such payment on such Business Day in same day funds; provided, however, that no Participant shall be obligated to pay to the Administrative Agent for the benefit of such Issuing Bank its Dollar Percentage (in the case of a Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of such unreimbursed amount for any wrongful payment made by such Issuing Bank under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Bank (as finally determined by a court of competent jurisdiction). If and to the extent such Participant shall not have so made its Dollar Percentage (in the case of a Dollar Letter of Credit) or Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of the amount of such payment available to the Administrative Agent for the benefit of such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account benefit of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the benefit of such Issuing Bank at (x) in the case of Dollar Letters of Credit and, after the occurrence of a Sharing Event, other amounts owing in Dollars, the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Dollar Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (y) in the case of Alternate Currency Letters of Credit denominated in a given Alternate Currency at any time prior to the occurrence of a Sharing Event, the relevant Euro Rate (as determined on the basis provided in the proviso appearing in the definition of the relevant Euro Rate) or relevant Alternate Currency Non-LIBOR Rate, as applicable, for the first three days and the interest rate applicable to Alternate Currency Revolving Loans denominated in such Alternate Currency for each day thereafter). The failure of any Participant to make available to any such Issuing Bank its Dollar Percentage (in the case of a Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Dollar Percentage (in the case of a Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of any unreimbursed payment under any with respect to a 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 the Administrative Agent for the benefit of such Issuing Bank such other Participant's ’s Dollar Percentage or relevant Alternate Currency RL Percentage (or, after the occurrence of a Sharing Event, its RL Percentage), as applicable, of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account benefit of such Participanteach Participant which has paid its Dollar Percentage (in the case of a Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) thereof, in Dollars (or, in the case of an Alternate Currency Letter of Credit, at any time prior to the occurrence of a Sharing Event, the Alternate Currency in which such Alternate Currency Letter of Credit is denominated) and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage 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. The payment required to be made by the respective Issuing Bank to the Administrative Agent pursuant to the preceding sentence shall be made on the day the respective payment of a reimbursement obligationis received by such Issuing Bank (if payment was actually received by such Issuing Bank prior to 12:00 Noon (local time in the city in which such payments are to be made)).
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any the Administrative Agent for the benefit of each Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever (except as otherwise provided in the proviso to the second sentence of Section 2.04(c)) 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower any Credit Party or any of its Subsidiaries or Affiliates 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 Documentation any Agent, any Issuing Bank, any BankParticipant, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between any Credit Party or any Subsidiary or Affiliate of any Credit Party 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 guaranty 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 (Starwood Hotel & Resorts Worldwide Inc)
Letter of Credit Participations. (a) Immediately upon The Agent irrevocably agrees to grant and hereby grants to each Lender, and, to induce the issuance by any Issuing Bank of any Letter of Credit (or upon the Second Restatement Effective Date Agent to join in the case of application to issue Letters of Credit existing in accordance with the terms hereof, each Lender irrevocably agrees to accept and purchase from the Agent, on the terms and conditions hereinafter stated, for such date), such Issuing Bank shall be deemed to have sold Lender's own account and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warrantyrisk, an undivided interest and participation, equal to the extent of such ParticipantLender's Percentage, in such Letter of Revolving Credit of such Issuing Bank, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change Commitment Percentage in the Commitments of the Participants pursuant to Section 12.04, it is hereby agreed that, with respect to all outstanding Agent's obligations and rights under each Letters of Credit Agreement and Unpaid Drawings, there shall be an automatic adjustment to in the participations pursuant to this Section 2.04 to reflect amount of each draft reimbursed by the new Percentages of the assigning Agent thereunder. Each Lender unconditionally and assignee Participant.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank shall not have any obligation relative to the 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 irrevocably agrees with the requirements of such Letter of Credit. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by itAgent that, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest a draft is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability to any Participant.
(c) In the event that any Issuing Bank makes any payment paid under any Letter of Credit and for which the Borrower shall issuing bank is not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a)by a Borrower in accordance with the terms of the Letter of Credit Agreement, such Issuing Bank Lender shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent (for the sole account of the Agent), upon the Agent's demand, an amount equal to such Issuing Bank the amount of the ParticipantLender's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Revolving Credit Commitment Percentage of the amount of such payment on such Business Day in same day funds. draft, or any part thereof, which is not so reimbursed by a Borrower.
(b) If and any amount required to be paid by any Lender to the extent such Participant shall not have so made its Percentage of the amount of such payment available Agent pursuant to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure Section 2.12(a) in respect of any Participant to make available to any Issuing Bank its Percentage unreimbursed portion of any payment made by the issuing bank under any Letter of Credit shall not relieve any other Participant of its obligation hereunder is paid to make available to such Issuing Bank its Percentage of any payment under any Letter of Credit on the Agent within three Business Days after 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) aboveis due, such Issuing Bank Lender shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, on demand an amount equal to the Participant's Percentage product of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for such amount and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any daily average Federal Funds Effective Rate during the period from and including the date such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove payment is required to be invalid or ineffective for any reason;
made to the date on which such payment has been made to the Agent and (iii) failure a fraction, the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any Lender pursuant to Section 2.12(a) is not paid to the Agent by such Lender within three Business Days after the date such payment is due, the Agent shall be entitled to recover from such Lender, on the Agent's demand, such amount with interest thereon calculated from such due date at the rate per annum applicable to Revolving Credit Loans hereunder. A certificate of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments Agent submitted to any Issuing Bank Lender with respect to Letters of Credit any amount owing under this subsection shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made conclusive in accordance with the terms and conditions absence 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 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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 Defaultmanifest error.
Appears in 1 contract
Samples: Loan and Security Agreement (General Datacomm Industries Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Lender of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters of Credit existing on such date), such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank RL Lender, other than such the Issuing Bank Lender in its capacity (if any) as an RL Lender (each such other Bank RL Lender, in such capacityits capacity under this Section 2.04, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such the Issuing Bank Lender under or in connection with any Letter of Credit if shall not create for the Issuing Lender any resulting liability to the 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, shall not create for such Issuing Bank any resulting liability to any Participantmisconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any the Issuing Bank 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 the Issuing Bank Lender pursuant to Section 2.05(a), such the Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 1:00 P.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of Issuing Lender in Dollars such Issuing Bank the Participant's RL Percentage 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 RL Percentage of the amount of such payment available to such the Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Bank Lender at the overnight Federal Funds RateRate 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 any the Issuing Bank Lender its RL Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such the Issuing Bank Lender its RL 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 the Issuing Bank Lender such other Participant's RL Percentage of any such payment.
(d) Whenever any the Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such the Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective the Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any the Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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.
Appears in 1 contract
Samples: Credit Agreement (Hydrochem Industrial Services Inc)
Letter of Credit Participations. (ai) Immediately upon the issuance by any the Issuing Bank of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters of Credit existing on such date), such Issuing Bank shall be deemed to have sold and transferred to each Bank other than such Issuing Bank Lender that has a Commitment (each such other Bank Lender, in such capacityits capacity under this Section 2.04(c), as "an “L/C Participant"”), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Bank, without recourse or warranty, an undivided interest and participationparticipation (each an “L/C Participation”), to the extent of such L/C Participant's Percentage, in ’s Applicable Percentage of such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request thereto (although Letter of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, Credit Fees will be paid directly to the Administrative Agent or for the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments ratable account of the L/C Participants pursuant as provided in Section 2.09(b) and the L/C Participants shall have no right to Section 12.04, it is hereby agreed that, with respect to all outstanding Letters receive any portion of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning and assignee Participantany Fronting Fees).
(bii) In determining whether to pay under any Letter of Credit, the respective Issuing Bank shall not have any no obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such the Issuing Bank 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, shall not create for such the Issuing Bank any resulting liability to any Participantliability.
(ciii) In the event that any the Issuing Bank makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed repaid such amount in full to such the respective Issuing Bank pursuant to Section 2.05(a2.04(d), such the Issuing Bank shall promptly notify the Administrative Agent and each L/C Participant of such failure, and each L/C Participant shall promptly and unconditionally pay to the Administrative Agent Agent, for the account of such the Issuing Bank Bank, the amount of the such L/C Participant's ’s Applicable Percentage of such unreimbursed payment in Dollars and in same day immediately available funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent for the account of the Issuing Bank its Applicable Percentage of such unreimbursed amount arising from any wrongful payment made by the Issuing Bank under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Issuing Bank. If any the Issuing Bank so notifies, prior to 11:00 A.M. a.m. (New York time) on any Business Day, such 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 for the account of such the Issuing Bank the such L/C Participant's ’s Applicable Percentage of the amount of such payment on such Business Day in same day immediately available funds. If and to the extent such L/C Participant shall not have so made its Applicable Percentage of the amount of such payment available to such the Administrative Agent, for the account of the Issuing Bank, such L/C Participant agrees to pay to the Administrative Agent Agent, for the account of such the Issuing Bank, forthwith on demand demand, such amount, together with interest thereon, thereon for each day from such date until the date such amount is paid to such the Administrative Agent, for the account of the Issuing Bank at a rate equal to the overnight greater of (x) the Federal Funds RateEffective Rate and (y) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. The failure of any L/C Participant to make available to any the Administrative Agent, for the account of the Issuing Bank its Applicable 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 such the Administrative Agent, for the account of the Issuing Bank its Applicable Percentage of any payment under any such Letter of Credit on the date required, as specified above, but but, except as provided in Section 2.15, no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to such Issuing Bank the Administrative Agent such other L/C Participant's ’s Applicable Percentage of any such payment.
(div) Whenever any the Issuing Bank receives a payment in respect of a an unpaid reimbursement obligation as to which it the Administrative Agent has received for the account of the Issuing Bank any payments from any Participant the L/C Participants pursuant to clause paragraph (ciii) above, such the Issuing Bank shall pay to the Administrative Agent for and the account Administrative Agent shall promptly pay to each L/C Participant that has paid its Applicable Percentage of such Participantreimbursement obligation, in Dollars and in same day immediately available funds, an amount equal to such L/C Participant’s share (based upon the Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective L/C Participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the L/C Participants to make payments to any the Administrative Agent for the account of the Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, including under any of the following circumstances:
(iA) any lack of validity or enforceability of this Agreement or any of the Credit other Loan Documents;
(iiB) the existence of any claim, setoffset-off, defense or other right which 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 Documentation Agent, any Issuing Bank, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iiiC) 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;
(ivD) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; or
(vE) the occurrence of any Default Default; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent for the account of the Issuing Bank its Applicable Percentage of any unreimbursed amount arising from any wrongful payment made by the Issuing Bank under a Letter of Credit as a result of acts or Event omissions constituting willful misconduct or gross negligence on the part of Defaultthe Issuing Bank.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.13, 2.15 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York City time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage of the amount of such payment on such Business Day in same day fundsfunds (and, to the extent that such notice is given after 12:00 Noon (New York City time) on any Business Day, such amount will be made available by each Participant on the immediately succeeding Business Day). If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to such respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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.
Appears in 1 contract
Samples: Credit Agreement (Pyramid Communication Services, Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct on the part of such Issuing Lender, its Affiliates, or any of such Issuing Lender’s or its Affiliates’ employees, directors, officers, or agents (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York City time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Restricted Subsidiary of 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.
Appears in 1 contract
Samples: Credit Agreement (Radio One, Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank a Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter Letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Agent for the account of the Lenders as provided in Section 3.1(b)) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments of the Participants Lenders pursuant to Section 12.041.13 or 12.4(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.4 to reflect the new Percentages of the assigning and assignee ParticipantLender.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank no Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank any Letter of Credit Issuer under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of such a finding of gross negligence or willful misconduct, shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank Letter of Credit Issuer 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 Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.3(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Agent, and the Agent shall promptly notify each Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's Percentage of such unreimbursed payment in U.S. Dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Agent its Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit issued by it as a result of acts or omissions that have been 21 found to constitute willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Agent so notifies any Issuing Bank so notifies, Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the respective Letter of Credit Issuer such Issuing Bank the Participant's Percentage of the amount of such payment on such Business Day in same day fundsfunds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Participant shall make such payment on the immediately following Business Day). If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to such Issuing Bankthe Agent for the account of the respective Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 such Issuing Bank the Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank the Agent for the account of the respective Letter of Credit Issuer its Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Agent for the account of such Issuing Bank Letter of Credit Issuer its applicable Percentage of any payment under any such 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 the Agent for the account of such Issuing Bank Letter of Credit Issuer such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAgent shall promptly pay to each Participant which has paid its Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to the such Participant's Percentage of such payment the principal amount thereof and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Agent for the account of the respective Letter of Credit Issuer with respect to Letters each Letter 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the 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, the Documentation Agent, any Issuing BankLetter of Credit Issuer, any BankLender, any Participant or any other Person, whether in connection with this Agreement, 22 any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower, 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 the 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: Loan Agreement (Grey Wolf Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender with a Commitment, other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 2.03, as "a “Participant"”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments or Percentages of the Participants Lenders pursuant to Section 12.04Sections 1.12 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.03 to reflect the new Percentages of the assigning assignor and assignee ParticipantLender or of all Lenders with Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective such Issuing Bank Lender shall not have any no obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled Subject to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations provisions of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Lender any resulting liability to any ParticipantCredit Party or any Lender.
(c) In the event that any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a2.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of such Participant’s Percentage (as relates to the Participant's Percentage respective Letter of Credit) of such unreimbursed payment in Dollars the relevant Permitted Currency as the applicable Letter of Credit was issued and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 1:00 P.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of such Issuing Bank Lender in the relevant Permitted Currency as the applicable Letter of Credit was issued such Participant's ’s 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 Percentage of the amount of such payment available to the Administrative Agent for the account of such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Revolving Loans for each day thereafter. The failure of any Participant to make available to any the Administrative Agent for the account of such Issuing Bank Lender its Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Lender its Percentage of any payment under any such 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 the Administrative Agent for the account of such Issuing Bank Lender such other Participant's ’s Percentage of any such payment.
(d) Whenever any Issuing Bank Lender receives a payment of a reimbursement obligation as to which it the Administrative Agent has received (for the account of any such Issuing Lender) any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent for Agent, which in turn shall distribute to each Participant which has paid its Percentage thereof in the account of such Participantrelevant Permitted Currency, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon Each Issuing Lender shall, promptly after the request of any Participantissuance of, each respective Issuing Bank shall furnish to such Participant copies of any or amendment to, a Letter of Credit issued by it give the Administrative Agent and the Borrowers written notice of such issuance or amendment, as the case may be, and such other documentation notice shall be accompanied by a copy of the issued Letter of Credit or amendment, as the case may reasonably be requested by be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Participant, in writing, of such issuance or amendment and in the event a Participant shall so request, the Administrative Agent shall furnish such Participant with a copy of such issuance or amendment.
(f) As between Each Issuing Lender shall deliver to the Borrower and Administrative Agent, promptly on the respective Issuing Bankfirst Business Day of each week, by facsimile transmission, the Borrower assumes all risks of aggregate daily Stated Amount available to be drawn under the acts and omissions of, or misuse of the outstanding Letters of Credit issued by such Issuing Lender for the respective beneficiaries previous week. Upon request, the Administrative Agent shall, within 10 days after the last Business Day of each calendar month, deliver to each Participant a report setting forth for such preceding calendar month the aggregate daily Stated Amount available to be drawn under all outstanding Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of Credit during such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentscalendar month.
(g) The obligations of the Participants to make payments to any the Administrative Agent for the account of the respective Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Borrowers or any of their respective Subsidiaries may have at any time against a beneficiary 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 Documentation Agentany Lender, any Issuing BankLender, any BankParticipant, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrowers or any of their respective 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.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant"), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such L/C Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.14 or 13.4, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.4 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Loan Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a3.5(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant of such failure, and each L/C Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such L/C Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York City time) on any Business Day, such 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 for the account of respective Issuing Lender in Dollars such Issuing Bank the L/C Participant's ’s RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such L/C Participant shall not have so made its RL Percentage of the amount of such payment available to such respective Issuing BankLender, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateOvernight Rate for the first three (3) 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 L/C Participant to make available to any an Issuing Bank Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other L/C Participant of its obligation hereunder to make available to such Issuing Bank Lender its RL Percentage of any payment under any 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 such Issuing Bank Lender such other L/C Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the L/C Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantL/C Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such L/C Participant’s share (based upon the Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any L/C Participant, each respective Issuing Bank Lender shall furnish to such L/C Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such L/C Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the L/C Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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:
(iA) any lack of validity or enforceability of this Agreement or any of the Credit other Loan Documents;
(iiB) the existence of any claim, setoff, defense or other right which the Borrower 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, the Documentation Agentany L/C Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between Holdings or any Subsidiary of Holdings and the beneficiary named in any such Letter of Credit);
(iiiC) 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;
(ivD) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; or
(vE) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Amendment No. 3 (Informatica Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by any each Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender, other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 2.04, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments or Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of CreditCredit issued by it, the respective no Issuing Bank Lender shall not have any an obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless taken or omitted by reason of the gross negligence or willful misconduct of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York Detroit, Michigan time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's Percentage of the amount of such payment on such Business Day in same day funds; provided, however, that no Participant shall be obligated to pay to the respective Issuing Lender its Percentage of such unreimbursed amount for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Base Rate Loans for each day thereafter. The failure of any Participant to make available to any the respective Issuing Bank Lender its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such the respective Issuing Bank Lender its 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 Bank Lender such other Participant's Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of such Participanteach Participant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever (except as otherwise provided in the proviso to the second sentence of Section 2.04(c)) 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation AgentAgents, any Issuing Bank, any BankLender, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank a Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (each a "PARTICIPANT") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantLender's Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Lenders as provided in section 3.1(b) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments of the Participants Lenders pursuant to Section 12.04section 12.4(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 section 2.4 to reflect the new Percentages of the assigning and assignee ParticipantLender.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank a Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank a Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank a Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Letter of Credit Issuer pursuant to Section 2.05(asection 2.3(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's Percentage of such unreimbursed payment in Dollars U.S. dollars and in same day funds, PROVIDED, HOWEVER, that no Participant shall be obligated to pay to the Administrative Agent its Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of CreditCredit prior to 11:00 A.M. (Cleveland, Ohio time) on any Business Day, such Participant shall make available to the Administrative Agent for the account of the relevant Letter of Credit Issuer such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bankthe Administrative Agent for the account of the relevant Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 for the account of such Issuing Bank Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the relevant Letter of Credit Issuer its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer its 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 the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank a Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (csection 2.4(c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its Percentage thereof, in Dollars U.S. dollars and in same day funds, an amount equal to the such Participant's Percentage of such payment the principal amount thereof and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations, as and to the extent so received.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of each Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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 other Loan Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which 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 person for whom any such transferee may be acting), the Administrative Agent, the Documentation Agentany Letter of Credit Issuer, any Issuing BankLender, any Bank, any Participant or any other Personperson, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit), other than any claim which the Borrower (or any Subsidiary which is the account party with respect to a Letter of Credit) may have against any applicable Letter of Credit Issuer for gross negligence or wilful misconduct of such Letter of Credit Issuer in making payment under any applicable Letter of Credit;
(iii) any draft, certificate statement or any other document presented under or in connection with any Letter of Credit or other Loan Document proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, PROVIDED that payment by a Letter of Credit Issuer under such Letter of Credit against presentation of such statement or document shall not have constituted gross negligence or willful misconduct;
(iv) payment by a Letter of Credit Issuer under a Letter of Credit against presentation of a draft or certificate that does not comply with the terms of the Letter or Credit, except any such payment resulting solely from the gross negligence or willful misconduct of the Letter of Credit Issuer;
(v) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; : or
(vvi) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (First Union Real Estate Equity & Mortgage Investments)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank shall be deemed to have sold and transferred to each Bank Lender with a Revolving Loan Commitment, other than such Issuing Bank (each such other Bank Lender, in such capacityits capacity under this Section 2.03, as a "ParticipantPARTICIPANT"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Adjusted Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect theretothereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Participants as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees with respect to such Letters of Credit), and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or Adjusted Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04 or as a result of a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.03 to reflect the new Adjusted Percentages of the assigning assignor and assignee ParticipantLender or of all Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled Subject to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations provisions of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank any resulting liability to any ParticipantCredit Party or any Lender.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a2.04(a), such Issuing Bank shall promptly notify the Administrative Agent, which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the such Participant's Adjusted Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the in Dollars such Participant's Adjusted Percentage 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 Adjusted Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any such Issuing Bank its Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Adjusted 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 Bank such other Participant's Adjusted Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank shall pay forward such payment to the Administrative Agent for the account of such ParticipantAgent, which in turn shall distribute to each Participant which has paid its Adjusted Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agent, any Issuing Bank, any BankParticipant, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower 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.
Appears in 1 contract
Samples: Credit Agreement (Pca Valdosta Corp)
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by any Issuing Bank a Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Bank, and each such Participant RL Bank (each, a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received re ceived from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest inter est and participation, to the extent of such Participant's Adjusted RL Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter Letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Agent for the account of the XX Xxxxx as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees with respect to such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or the Adjusted RL Percentages of the Participants XX Xxxxx pursuant to Section 12.041.13 or 13.04(b) or as a result of a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.03 to reflect the new Adjusted RL Percentages of the assigning and assignee ParticipantBank or of all XX Xxxxx, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank no Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank any Letter of Credit Issuer 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, shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank Letter of Credit Issuer 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 Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Agent, and the Agent shall promptly notify each Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's Adjusted RL Percentage of such unreimbursed payment in U.S. Dollars and in same day funds. If the Agent so notifies any Issuing Bank so notifies, Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Letter of Credit Issuer such Issuing Bank the Participant's Adjusted RL Percentage of the amount of such payment on such Business Day in same day fundsfunds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Participant shall make such payment on the immediately following Business Day). If and to the extent such Participant shall not have so made its Adjusted RL Percentage of the amount of such payment available to such Issuing Bankthe Agent for the account of the respective Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 such Issuing Bank the Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank the Agent for the account of the respective Letter of Credit Issuer its Adjusted RL Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Agent for the account of such Issuing Bank Letter of Credit Issuer its applicable Adjusted RL Percentage of any payment under any such 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 the Agent for the account of such Issuing Bank Letter of Credit Issuer such other Participant's Adjusted RL Percentage of any such payment.
(d) Whenever any Issuing Bank Letter of Credit Issuer receives a payment of a reimbursement xxxx bursement obligation as to which it the Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAgent shall promptly pay to each Participant which has paid its Adjusted RL Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to the such Participant's Adjusted RL Percentage of such payment the principal amount thereof and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon Each Letter of Credit Issuer shall, promptly after each issuance of, or amendment or modification to, a Standby Letter of Credit issued by it, give the request of any ParticipantAgent, each respective Issuing Bank Participant and the Borrower written notice of the issuance of, or amendment or modification to, such Standby Letter of Credit, which notice shall furnish to such Participant copies be accompanied by a copy of any the Standby Letter of Credit or Standby Letters of Credit issued by it and each such other documentation as may reasonably be requested by such Participantamendment or modification thereto.
(f) As between Each Letter of Credit Issuer (other than BTCo) shall deliver to the Borrower and Agent, promptly on the respective Issuing Bankfirst Business Day of each week, by facsimile transmission, the Borrower assumes all risks of aggregate daily Stated Amount available to be drawn under the acts and omissions of, or misuse of the outstanding Trade Letters of Credit issued by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports Issuer for the previous week. The Agent shall, within 10 days after the last Business Day of each calendar month, deliver to comply with each Participant a report setting forth for such preceding calendar month the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove aggregate daily Stated Amount available to be in any and drawn under all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter outstanding Trade Letters of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any during such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentscalendar month.
(g) The obligations of the Participants to make payments to any Issuing Bank the Agent for the account of the respective Letter of Credit Issuer 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the 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, the Documentation Agent, any Issuing BankLetter of Credit Issuer, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower 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 the 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 (Alliance Imaging of Michigan Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Each Issuing Bank of any Letter of Credit (or upon the Second Restatement Effective Date irrevocably grants, and in the case of order to induce each Issuing Bank to issue its Letters of Credit existing on such date)hereunder, such Issuing Bank shall be deemed to have sold each Lender irrevocably accepts and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant"), hereby purchases for its own account and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received risk from such the applicable Issuing Bank, without recourse or warrantyon the terms and conditions hereinafter stated, an undivided interest and participation, equal to such Lender’s Facility A Participation in the extent of such Participant's Percentage, in such Letter of Credit of such applicable Issuing Bank, ’s obligations and rights under each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments of the Participants pursuant to Section 12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning and assignee Participant.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued hereunder and the amount of each drawing paid by it, the respective applicable Issuing Bank shall be entitled to the protections thereunder. Each Lender unconditionally and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance irrevocably agrees with the obligations of the Collateral Agent, provided that the such each Issuing Bank shall only foreclose that, on such security interest and enforce such guaranty if instructed to do so by or before the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination close of business of the Issuing Bank, but on each day on which a drawing is paid under a Letter of Credit for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle which the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall is not create for such Issuing Bank any resulting liability to any Participant.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank by the Canadian Borrower in accordance with the terms of this Agreement, including, without limitation, pursuant to Section 2.05(a11.8.1 (a “Participation Date”), such Issuing Bank shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally Lender will pay to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure Administrative Agent’s office specified in Section 12.1 such Lender’s Facility A Participation of any Participant to make available to any Issuing Bank its Percentage unpaid Reimbursement Obligation in respect of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Facility A Letters of Credit. FurtherThis obligation of each Lender is unconditional and, for greater certainty, shall apply both before and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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) after the occurrence of any Default or Event of Default, both before and after the Facility A Maturity Date and both before and after the termination or cancellation of the Facility A Total Commitment. Each Issuing Bank shall notify the Administrative Agent and each Lender of the occurrence of a Participation Date, and the amount payable by it to the Issuing Bank based on such Lender’s Facility A Participation. Any such notice may be oral if promptly confirmed in writing (including telecopy). If any Lender fails to make any such payment on or prior to the first Business Day after such Lender receives notice as provided above, then interest shall accrue on such Lender’s obligation to make such payment during the period from such Business Day to the day such Lender makes such payment (or if earlier, the date on which the Canadian Borrower reimburses the Issuing Bank for such unpaid Reimbursement Obligation) at the rate specified in Section 20.1.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Revolving Lender with a Revolving Loan Commitment, other than such Issuing Bank Lender (each such other Bank Revolving Lender, in such capacityits capacity under this Section 3.03, as "a “Revolving Participant"”), and each such Revolving Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Revolving Participant's ’s Revolving Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or Revolving Percentages of the Participants Lenders pursuant to Section 12.04Sections 2.12 or 14.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.03 to reflect the new Revolving Percentages of the assigning assignor and assignee ParticipantRevolving Lender or of all Revolving Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective such Issuing Bank Lender shall not have any no obligation relative to the Participants other Revolving 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled Subject to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations provisions of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Lender any resulting liability to any ParticipantCredit Party or any Revolving Lender.
(c) In the event that any Issuing Bank 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 Bank Lender pursuant to Section 2.05(a3.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant Revolving Participant, of such failure, and each Revolving Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of such Revolving Participant’s Revolving Percentage (as relates to the Participant's Percentage respective Letter of Credit) of such unreimbursed payment in Dollars the same currency as the applicable Letter of Credit was issued and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Revolving Participant required to fund a payment under a Letter of Credit, such Revolving Participant shall make available to the Administrative Agent at the Payment Office for the account of such Issuing Bank Lender in the same currency as the applicable Letter of Credit was issued such Revolving Participant's ’s Revolving 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 Revolving Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of such Issuing BankLender, such Revolving Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 for the account of such Issuing Bank Lender at the overnight Federal Funds Rate. The failure of any Revolving Participant to make available to any the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Revolving Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any such Letter of Credit on the date required, as specified above, but no Revolving Participant shall be responsible for the failure of any other Revolving Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender such other Revolving Participant's ’s Revolving Percentage of any such payment.
(d) Whenever any Issuing Bank Lender receives a payment of a reimbursement obligation as to which it the Administrative Agent has received (for the account of any such Issuing Lender) any payments from any Participant the Revolving Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent for the account of such ParticipantAgent, which in Dollars and turn shall distribute to each Revolving Participant which has paid its Revolving Percentage thereof, in same day funds, an amount equal to such Revolving Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Revolving Participant to the aggregate amount funded by all Revolving Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon Each Issuing Lender shall, promptly after the request of any Participantissuance of, each respective Issuing Bank shall furnish to such Participant copies of any or amendment to, a Letter of Credit issued by it give the Administrative Agent and the Borrower written notice of such issuance or amendment, as the case may be, and such other documentation notice shall be accompanied by a copy of the issued Letter of Credit or amendment, as the case may reasonably be requested by be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Revolving Participant, in writing, of such issuance or amendment and in the event a Revolving Participant shall so request, the Administrative Agent shall furnish such Revolving Participant with a copy of such issuance or amendment.
(f) As between Each Issuing Lender shall deliver to the Borrower and Administrative Agent, promptly on the respective Issuing Bankfirst Business Day of each week, by facsimile transmission, the Borrower assumes all risks of aggregate daily Stated Amount available to be drawn under the acts and omissions of, or misuse of the outstanding Letters of Credit issued by such Issuing Lender for the respective beneficiaries previous week. Upon request, the Administrative Agent shall, within 10 days after the last Business Day of each calendar month, deliver to each Revolving Participant a report setting forth for such preceding calendar month the aggregate daily Stated Amount available to be drawn under all outstanding Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of Credit during such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentscalendar month.
(g) The obligations of the Revolving Participants to make payments to any the Administrative Agent for the account of the respective Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Lender, any Issuing BankLender, any BankRevolving Participant, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower 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.
Appears in 1 contract
Samples: Credit Agreement and Forbearance Agreement (Trico Marine Services Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Facing Agent of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Facing Agent shall be deemed to have sold and transferred to each Bank Domestic Revolving Lender, other than such Issuing Bank Facing Agent (each such other Bank Lender, in such capacityits capacity under this SECTION 2.9(E), as a "ParticipantLC PARTICIPANT"), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankFacing Agent, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantDomestic Revolving Lender's PercentageDomestic Revolver Pro Rata Share, in such Letter of Credit of such Issuing BankCredit, each substitute letter Letter of creditCredit, each drawing Drawing made thereunder and the obligations of the Borrower under this Agreement with respect theretothereto (although Letter of Credit fees shall be payable directly to Administrative Agent for the account of the Domestic Revolving Lenders as provided in SECTION 2.9(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 the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Domestic Revolving Commitments of the Participants pursuant to Section 12.04, Domestic Revolving Lenders it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating to Letters of Credit, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 SECTION 2.9(E) to reflect the new Percentages Domestic Revolver Pro Rata Share of the assigning assignor and assignee ParticipantLender or of all Lenders with Domestic Revolving Commitments, as the case may be.
(bi) In determining whether to pay under any Letter of Credit, the respective Issuing Bank such Facing Agent shall not have any 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank 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 misconductmisconduct as determined by a final and non appealable decision rendered by a court of competent jurisdiction, shall not create for such Issuing Bank Facing Agent any resulting liability to any Participant.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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 DefaultLender.
Appears in 1 contract
Samples: Credit Agreement (Noveon Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender with a Revolving Loan Commitment, other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 2.04, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, RL Percentage in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Facing Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.041.13 or 12.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the Participants therein 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such an Issuing Bank Lender any resulting liability to any ParticipantRevolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted 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 decision).
(c) In the event that any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such the respective Issuing Bank Lender, the amount of the such Participant's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York timeLocal Time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the respective Issuing Lender such Issuing Bank the Participant's RL Percentage 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 RL Percentage of the amount of such payment available to such the Administrative Agent for the account of the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Revolving Loans maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to any the Administrative Agent for the account of an Issuing Bank its Lender such Participant's RL 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 the Administrative Agent for the account of such Issuing Bank its Lender such Participant's RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender such other Participant's RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Issuing Lender any payments from any Participant the respective Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for and the account of Administrative Agent shall promptly pay to each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the respective Participants to make payments to any the Administrative Agent for the account of each Issuing Bank 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the Borrower any Revolving Borrower, any other Credit Party or any Subsidiary thereof 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 Documentation Agentsuch Issuing Lender, any Issuing Bank, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between any Revolving Borrower, any other Credit Party or any Subsidiary thereof and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any the 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
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank shall be deemed to have sold and transferred to each Bank Bank, other than such Issuing Bank (each such other Bank Bank, in such capacityits capacity under this Section 2.04, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, Adjusted Percentage in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and Acceptances created thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or Adjusted Percent- ages of the Participants Banks pursuant to Section 12.041.13 or 13.04 or as a result of a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit Credit, Acceptances and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Adjusted Percentages of the assigning assignor and assignee ParticipantBank or of all Banks with Revolving Loan Commit- ments, as the case may be.
(b) In determining whether to pay or create an Acceptance under any Letter of Credit, the respective such Issuing Bank shall not have any no obligation relative to the Participants other Banks 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability to the Borrowers or any ParticipantBank.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit issued by it or any Acceptance created thereunder and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the such Participant's Adjusted Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifiesnoti- fies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the in Dollars such Participant's Adjusted Percentage 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 Adjusted Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any such Issuing Bank its Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Adjusted Percentage of any payment under any Letter of Credit or Acceptance created thereunder 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 Bank such other Participant's Adjusted Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement xxxx- bursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participanteach Participant which has paid its Adjusted Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(ei) Upon In the request case of any ParticipantStandby Letters of Credit, the Agent shall deliver to each respective Issuing Bank shall furnish to such Participant copies of each Standby Letter of Credit upon issuance and any amendments thereto as they occur, as furnished to the Administrative Agent by the Issuing Bank.
(ii) In the case of Trade Letters of Credit, when the Administrative Agent is not the Issuing Bank, then the Issuing Bank is to send to the Agent, promptly on the first business day of each week, by telefax, their daily outstanding Trade Letters of Credit balances for the previous week. The Administrative Agent shall deliver to each Bank upon each calendar month end and upon each Letter of Credit fee payment a report setting forth for such period the aggregate daily amount available to be drawn under Trade Letters of Credit issued by it and all Issuing Banks that were outstanding during such other documentation as may reasonably be requested by such Participantperiod.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank with respect to Letters of Credit and Acceptances issued thereunder shall be irrevocable and not subject to any qualification qualifi- cation 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Borrowers or any of their 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 holder of an Acceptance, the Administrative Agent, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, any Acceptance, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between any 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 (Furniture Brands International Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Revolving Lender, and each such Participant Revolving Lender (in its capacity under this Section 3.4, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the applicable Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.14 or 13.4, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.4 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to any ParticipantBorrower, any other Loan Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the applicable Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a3.5(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars (or, in respect of Letters of Credit denominated in an Alternate Currency, such Alternate Currency) and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York City time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account respective Issuing Lender in Dollars (or, in respect of Letters of Credit denominated in an Alternate Currency, such Issuing Bank the Alternate Currency) such Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars (or, in respect of Letters of Credit denominated in an Alternate Currency, such Alternate Currency) and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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:
(iA) any lack of validity or enforceability of this Agreement or any of the Credit other Loan Documents;
(iiB) the existence of any claim, setoff, defense or other right which the Borrower 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between Holdings or any Subsidiary of Holdings and the beneficiary named in any such Letter of Credit);
(iiiC) 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;
(ivD) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; or
(vE) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Revolving Lender, and each such Participant Revolving Lender (each a "Participant") shall be ----------- deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantLender's Adjusted Revolving Commitment Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although the Letter of Credit Fee shall be payable directly to the Agent for the account of the Lenders as provided in Section 3.01(b) and the Participants shall have no --------------- right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Commitments or Adjusted Revolving Commitment Percentages of the Participants Revolving Lenders pursuant to Section 12.0412.04(b) or upon a Lender Default, it is hereby agreed that, with ---------------- respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.05 to ------------ reflect the new Adjusted Revolving Commitment Percentages of the assigning and assignee ParticipantLender or of all Revolving Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank the Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful wilful misconduct, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank the --------------- Letter of Credit Issuer shall promptly notify the Agent, and the Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer, the amount of the such Participant's Adjusted Revolving Commitment Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Agent its Adjusted Revolving Commitment Percentage of such unreimbursed amount for any wrongful payment made by the Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions finally determined by a court of competent jurisdiction to have constituted wilful misconduct or gross negligence on the part of the Letter of Credit Issuer. If the Agent so notifies any Issuing Bank so notifies, Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer such Issuing Bank the Participant's Adjusted Revolving Commitment Percentage 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 Adjusted Revolving Commitment Percentage of the amount of such payment Unpaid Drawing available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of the Letter of Credit Issuer, such Issuing Bank, forthwith Participant shall pay interest on demand such amount, together with interest thereon, for each day amount from such date until the date such amount is paid to such Issuing Bank the Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Agent for the account of the Letter of Credit Issuer its Adjusted Revolving Commitment Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank the Agent for the account of the Letter of Credit Issuer its Adjusted Revolving Commitment 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 Bank the Agent for the account of the Letter of Credit Issuer such other Participant's Adjusted Revolving Commitment Percentage of any such payment.
(d) Whenever any Issuing Bank the Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Agent has received for the account of the Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAgent shall promptly pay to each Participant which has paid its Adjusted Revolving Commitment Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Adjusted Revolving Commitment Percentage of such payment the principal amount thereof and interest thereon accruing at the overnight Federal Funds Effective Rate after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, setoff or other defense or any other qualification or exception whatsoever (provided that no Participant --------- shall be required to make payments resulting from the Letter of Credit Issuer's gross negligence or wilful misconduct) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
: (i) any lack of validity or enforceability of this Agreement or any of the Credit other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Lender of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters of Credit existing on such date), such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender (other than such the Issuing Bank Lender in its capacity (if any) as a Lender) and each such other Bank Lender (in such capacityits capacity under this SECTION 3.4, as a "ParticipantPARTICIPANT"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's PercentageProportionate Share, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Aggregate Commitments or Proportionate Shares of the Participants respective Lenders pursuant to Section 12.04SECTION 2.9 or SECTION 11.6, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 SECTION 3.4 to reflect the new Percentages Proportionate Shares of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such the Issuing Bank Lender under or in connection with any Letter of Credit if issued by it shall not create for the Issuing Lender any resulting liability to 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, shall not create for such Issuing Bank any resulting liability to any Participant.
misconduct (c) In the event that any Issuing Bank makes any payment under any Letter as determined by a court of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 the Borrower may have at any time against a beneficiary named competent jurisdiction in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be actingfinal and non-appealable decision), the Administrative Agent, the Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Agent of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters of Credit existing on such date), such Issuing Bank Agent shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank Bank, in such capacityits capacity under this Section 2.04, as a "ParticipantPARTICIPANT"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankAgent, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, Percentage in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower Company under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments Commitment of the Participants Banks pursuant to Section 12.041.01(d), Section 1.14 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning assignor and assignee ParticipantBank or of all Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Agent shall not have any no obligation relative to the Participants other Banks 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such the Issuing Bank Agent under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank Agent any resulting liability to the Company, any ParticipantSubsidiary of the Company or any Bank.
(c) In the event that any the Issuing Bank Agent makes any payment under any Letter of Credit and the Borrower Company shall not have reimbursed such amount in full to such the Issuing Bank Agent pursuant to Section 2.05(a), such the Issuing Bank Agent shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Issuing Agent for the account of such Issuing Bank the amount of the such Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Issuing Agent for the account of in Dollars such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such the Issuing BankAgent, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankAgent, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Bank Agent at the overnight Federal Funds Rate. The failure of any Participant to make available to any the Issuing Bank Agent its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such the Issuing Bank Agent its 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 the Issuing Bank Agent such other Participant's Percentage of any such payment.
(d) Whenever any the Issuing Bank Agent receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such the Issuing Bank Agent shall pay to the Administrative Agent for the account of such Participanteach Participant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the payment of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish Subject to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(iSection 2.04(b) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any the Issuing Bank Agent with respect to Letters of Credit issued by it shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Company 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, any other Credit Document, the transactions contemplated herein or therein or any unrelated transactionstransactions (including any underlying transaction between the Company or any of its Subsidiaries on the one hand and the beneficiary named in any such Letter of Credit on the other hand);
(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: Global Revolving Credit Agreement (Sealed Air Corp/De)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (in its capacity under this Section 2.04, a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or Percentages of the Participants Lenders pursuant to Section 12.041.12 or 14.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to either Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. a.m. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s Percentage 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 Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds Rate for the first three days and at the Base Rate, as in effect from time to time, plus the Applicable Margin as in effect from time to time minus 1% for each day thereafter. The failure of any Participant to make available to any an Issuing Bank Lender its 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 Bank Lender its 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 Bank Lender such other Participant's ’s Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Parent 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Parent or any Subsidiary of the Parent 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
Letter of Credit Participations. (a) Immediately upon The Issuing Lender irrevocably agrees to grant and hereby grants to each Letter of Credit Participant, and, to induce the issuance Issuing Lender to issue Letters of Credit hereunder, each Letter of Credit Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender, on the terms and conditions hereinafter stated, for such Letter of Credit Participant’s own account and risk an undivided interest equal to such Letter of Credit Participant’s Revolving Credit Commitment Percentage in the Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued hereunder and the amount of each draft paid by any the Issuing Bank Lender thereunder. Each Letter of Credit Participant unconditionally and irrevocably agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit (for which the Issuing Lender is not reimbursed in full by the Borrower through a Revolving Credit Loan or upon otherwise in accordance with the Second Restatement Effective Date in the case terms of Letters of Credit existing on such date)this Agreement, such Issuing Bank shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, in such Letter of Credit Participant shall pay to the Issuing Lender upon demand at the Issuing Lender’s address for notices specified herein an amount equal to such Letter of Credit Participant’s Revolving Credit Commitment Percentage of the amount of such Issuing Bankdraft, each substitute letter of creditor any part thereof, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall which is not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments of the Participants pursuant to Section 12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning and assignee Participantso reimbursed.
(b) In determining whether Upon becoming aware of any amount required to pay be paid by any Letter of Credit Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment made by the Issuing Lender under any Letter of Credit, the respective Issuing Bank Lender shall not have any obligation relative to notify each Letter of Credit Participant of the Participants other than to confirm that any documents amount and due date of such required to be delivered under payment and such Letter of Credit appear Participant shall pay to have been delivered and that they appear the Issuing Lender the amount specified on the applicable due date. If any such amount is paid to comply on their face with the requirements of Issuing Lender after the date such payment is due, such Letter of CreditCredit Participant shall pay to the Issuing Lender on demand, in addition to such amount, the product of (i) such amount, times (ii) the daily average Federal Funds Rate as determined by the Administrative Agent during the period from and including the date such payment is due to the date on which such payment is immediately available to the Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. In taking any actions A certificate of the Issuing Lender with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank amounts owing under this Section shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank under or in connection with any Letter of Credit if taken or omitted conclusive in the absence of gross negligence or willful misconductmanifest error. With respect to payment to the Issuing Lender of the unreimbursed amounts described in this Section, if the Letter of Credit Participants receive notice that any such payment is due (A) prior to 1:00 p.m. on any Business Day, such payment shall not create for be due that Business Day, and (B) after 1:00 p.m. on any Business Day, such Issuing Bank any resulting liability to any Participantpayment shall be due on the following Business Day.
(c) In Whenever, at any time after the event that any Issuing Bank makes any Lender has made payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day has received from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Percentage of any payment under any Letter of Revolving 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Commitment Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bankin accordance with this Section, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) Lender receives any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any payment related to such Letter of Credit which purports (whether directly from the Borrower or otherwise), or any payment of interest on account thereof, the Issuing Lender will distribute to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or Participant its pro rata share thereof; provided that in the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove event that any such payment received by the Issuing Lender shall be required to be invalid or ineffective for any reason;
(iii) failure of returned by the beneficiary of any Issuing Lender, such Letter of Credit Participant shall return to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in Issuing Lender the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication portion thereof previously distributed by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsLender to it.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage’s RL Percentage (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)), in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.13, 2.15 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(ba) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Loan Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(cb) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)) in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York City time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage of the amount of such payment (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)) on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)) available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateEffective Rate for the first three days and at the interest rate applicable to Loans that are maintained as ABR Loans for each day thereafter. The failure of any Participant to make available to any an Issuing Bank Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)) shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank Lender its RL Percentage of any payment under any Letter of Credit (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)) 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(dc) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account each such Participant which has paid its RL Percentage thereof (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such ParticipantLetter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)), in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(ed) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(ge) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Parent Guarantor, the Borrower or any of their 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions transaction contemplated herein or any unrelated transactionstransaction (including any underlying transaction between any Parent Guarantor, the Borrower or any Subsidiary of a Parent Guarantor or 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 Loan Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Exit Abl Credit Agreement (Pyxus International, Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank Multicurrency Facility RL Lender (each such other Bank Lender with respect to any Letter of Credit, in such capacityits capacity under this Section 2.04, as a "L/C Participant"), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, in a percentage equal to the extent of such L/C Participant's Multicurrency Facility RL Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing Drawing made thereunder and the obligations of the respective Borrower under this Agreement with respect theretothereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Multicurrency Facility RL Lenders, as provided in Section 3.01(b) and the L/C Participants shall have no right to receive any portion of any Facing Fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Multicurrency Facility Revolving Loan Commitments and, as a result thereof the Multicurrency Facility RL Percentages, of the Participants Multicurrency Facility RL Lenders pursuant to Section 12.041.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Multicurrency Facility RL Percentages of the assigning Multicurrency Facility RL Lenders. With respect to each Letter of Credit from time to time outstanding, the percentage participations therein of the various Multicurrency Facility RL Lenders calculated as provided above in this Section 2.04(a) are herein called the "L/C Participation Percentages" of the various Multicurrency Facility RL Lenders in such Letters of Credit. All calculations of the L/C Participation Percentages shall be made from time to time by the Administrative Agent, which calculations shall be conclusive absent manifest error. Furthermore, upon the occurrence of a Sharing Event and assignee Participantas more fully set forth in Section 1.14, additional sub-participations may be required to be granted by the various Multicurrency Facility RL Lenders in their participations in outstanding Letters of Credit, in each case in accordance with, and subject to the provisions of, Section 1.14.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Lender shall not have any no obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank 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 misconductmisconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision), shall not create for such Issuing Bank Lender any resulting liability to any ParticipantAccount Party or any Lender.
(c) In the event that any Issuing Bank Lender makes any payment or disbursement under any Letter of Credit issued by it and the Borrower respective Account Party shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant therein of such failure, and each L/C Participant therein shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such L/C Participant's L/C Participation Percentage (as relates to the respective Letter of such unreimbursed payment 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 2.05(a)) in Dollars (or, to the extent the respective Unpaid Drawing is, in accordance with Section 2.05(a), to be reimbursed by the respective Account Party in Euros, in Euros) and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any L/C Participant required to fund a payment 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 2.05(a)), such Issuing Bank the 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 so made its L/C Participation Percentage of the amount of such payment available to such the Administrative Agent for the account of the respective Issuing BankLender, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such the date the respective Unpaid Drawing occurred until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds Rate (or, in the case of amounts owed in Euros, at the Overnight Euro Rate), 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 2.05(a). The failure of any L/C Participant to make available to any the Administrative Agent for the account of the respective Issuing Bank 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 Bank Lender its relevant L/C Participation Percentage of any payment under 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 Bank Lender such other L/C Participant's relevant L/C Participation Percentage of any such payment.
(d) Whenever any Issuing Bank Lender receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Issuing Lender any payments from any Participant the L/C Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for and the account of such ParticipantAdministrative 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 2.05(a)) and in same day funds, an amount equal to the such L/C Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon Each Issuing Lender shall, promptly after the request issuance of, or amendment or modification to, a Standby Letter of any 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, each respective Issuing Bank in writing, of such issuance, amendment or modification and if any L/C Participant shall so request, the Administrative Agent shall furnish to said L/C Participant with a copy of such Participant copies of any Standby Letter of Credit issued by it and Credit, such other documentation amendment or such modification, as the case may reasonably be requested by such Participantbe.
(f) As between Each Issuing Lender shall deliver to the Borrower and Administrative Agent, promptly on the respective Issuing Bankfirst Business Day of each week, by facsimile transmission, the Borrower assumes all risks of aggregate daily Stated Amount available to be drawn under the acts and omissions of, or misuse of the outstanding Trade Letters of Credit issued by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible Lender for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsprevious week.
(g) The obligations of the L/C Participants to make payments to any the Administrative Agent for the account of the respective Issuing Bank 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 the Borrower 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), the Administrative Agent, the Documentation any Agent, any Issuing BankLender, any BankIssuing Lender, any Participant L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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; provided that the L/C Participants shall not be obligated to reimburse such Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of deliberate acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). 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
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 3.3, as an "L/C Participant"), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bankthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participationparticipation (each an "L/C Participation"), to the extent of such L/C Participant's Revolving Credit Commitment Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request thereto (although Letter of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, Credit Fees will be paid directly to the Administrative Agent or for the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments ratable account of the L/C Participants pursuant as provided in Section 4.1(b) and the L/C Participants shall have no right to Section 12.04, it is hereby agreed that, with respect to all outstanding Letters receive any portion of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning and assignee Participantany Fronting Fees).
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any no obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank the Letter of Credit Issuer 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, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed repaid such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a3.4(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent and each L/C Participant of such failure, and each L/C Participant shall promptly and unconditionally pay to the Administrative Agent Agent, for the account of such Issuing Bank the Letter of Credit Issuer, the amount of the such L/C Participant's Revolving Credit Commitment Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of such 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. If any Issuing Bank the Letter of Credit Issuer so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such 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 for the account of the Letter of Credit Issuer such Issuing Bank the L/C Participant's Revolving Credit Commitment Percentage of the amount of such payment on such Business Day in same day 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 such Issuing Bankthe Administrative Agent for the account of the Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe Letter of Credit Issuer, forthwith on demand demand, such amount, together with interest thereon, thereon for each day from such date until the date such amount is paid to such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any L/C Participant to make available to any Issuing Bank the Administrative Agent 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 such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under 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 such Issuing Bank the Administrative Agent such other L/C Participant's Revolving Credit Commitment Percentage of any such payment.
(d) Whenever any Issuing Bank the Letter of Credit Issuer receives a payment in respect of a an unpaid reimbursement obligation as to which it the Administrative Agent has received for the account of the Letter of Credit Issuer any payments from any Participant the L/C Participants pursuant to the preceding clause (c) above, such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent for and the account Administrative Agent shall promptly pay to each L/C Participant that has paid its Revolving Credit Commitment Percentage of such Participantreimbursement obligation, in Dollars and in same day funds, an amount equal to the such L/C Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective L/C Participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the L/C Participants to make payments to any Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which 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 Documentation AgentLetter of Credit Issuer, any Issuing Bank, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 for the account of the Letter of Credit Issuer its 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 (Brunos Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in its capacity under this Section 2.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) abovec)above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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.
Appears in 1 contract
Samples: Credit Agreement (Duratek Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in its capacity under this Section 2.04, a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's RL Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank 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 jurisdiction in a final and non-appealable decision)) 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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.
Appears in 1 contract
Samples: Credit Agreement (Nuco2 Inc /Fl)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in such capacity under this Section 2.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.05, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank Lender makes any payment under any Letter of Credit issued by it (including in respect of any time draft issued pursuant thereto) and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to the first sentence of Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly (i) notify the Swingline Lender, which shall (subject to satisfaction of Section 6 hereof, other than, at any time as the Borrower maintains with the Swingline Lender a deposit sweep arrangement satisfactory to such Lender, Section 6.02(a), provided such Letter of Credit is issued by the Swingline Lender in its capacity as Letter of Credit Issuer) make a Swingline Loan in the amount of such unreimbursed payment in Dollars, or (ii) if any provision of Section 6 is not satisfied (other than Section 6.02(a), to the extent not required under clause (i) of this subsection (c)), notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 P.M. (New York San Francisco time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage of the amount of such payment on such the following Business Day in same day funds, and the Borrower shall pay on demand interest on such amount at the rate specified in the first sentence of Section 2.05(a) from the date of payment by the Issuing Lender. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to such the Administrative Agent for the account of the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to any the Administrative Agent for the account of an Issuing Bank Lender its RL 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 the Administrative Agent for the account of such Issuing Bank Lender its RL 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 the Administrative Agent for the account of such Issuing Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank 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 jurisdiction in a final and non-appealable decision)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, including 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, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender (other than such Issuing Bank Lender in its capacity (if any) as a Lender) and each such other Bank Lender (in such capacityits capacity under this Section 3.4, as an "LC Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such LC Participant's PercentageProportionate Share, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the joint and several obligations of the Borrower Borrowers under this Credit Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments or Proportionate Shares of the Participants respective Lenders pursuant to Section 12.042.9 or Section 11.6, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.4 to reflect the new Percentages Proportionate Shares of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank Lender under or in connection with any Letter of Credit issued by it, if taken or omitted to be taken by it in the absence of gross negligence or willful misconductgood faith, shall not create for such Issuing Bank Lender any resulting liability to any Participantof the Borrowers, any other Credit Party, any Lender 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).
(c) In the event that any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a3.5(a), such Issuing Bank Lender shall promptly notify the Agent, which shall promptly notify each LC Participant of such failure, and each LC Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such LC Participant's Percentage Proportionate Share of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Agent so notifies, prior to 11:00 A.M. (New York time) 12:00 Noon on any Business Day, such any LC Participant required to fund a payment under a Letter of Credit, such LC Participant shall make available to the Administrative Agent for the account of applicable Issuing Lender in Dollars such Issuing Bank the LC Participant's Percentage Proportionate Share of the amount of such payment on such Business Day in same day funds. If and to the extent such LC Participant shall not have so made its Percentage Proportionate Share of the amount of such payment available to such the applicable Issuing BankLender, such LC Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Loans that are maintained as Prime Rate Loans for each day thereafter. The failure of any LC Participant to make available to any Issuing Bank Lender its Percentage Proportionate Share of any payment under any Letter of Credit shall not relieve any other LC Participant of its obligation hereunder to make available to such Issuing Bank Lender its Percentage Proportionate Share of any payment under any such Letter of Credit on the date required, as specified above, but no LC Participant shall be responsible for the failure of any other LC Participant to make available to such Issuing Bank Lender such other LC Participant's Percentage Proportionate Share of any such payment.
(d) Whenever any Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the LC Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantLC Participant which has paid its Proportionate Share thereof, in Dollars and in same day funds, an amount equal to the such LC Participant's Percentage share (based upon the proportionate aggregate amount originally handed by such LC Participant to the aggregate amount funded by all LC Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any LC Participant, each respective Issuing Bank Lender shall furnish to such LC Participant copies of any Letter of Credit issued by it and such other documentation with respect thereto as may reasonably be requested by such LC Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the LC Participants to make payments to any an Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Credit Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Credit Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower any Credit Party or any Subsidiary of any Credit Party 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 Documentation Agent, any Issuing BankLC Participant, any Bank, any Participant or any other Person, whether in connection with this Credit Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between any Credit Party or any Subsidiary of any Credit Party 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 Issuing Bank a Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Revolving Lender, and each such Participant Revolving Lender (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter Letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Agent for the account of the Revolving Lenders as provided in Section 3.1(b) and the Participants shall have no right to receive any portion of any Facing Fees with respect to such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments of the Participants Lenders pursuant to Section 12.041.13 or 12.4(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.4 to reflect the new Percentages of the assigning and assignee ParticipantLender.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank no Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank any Letter of Credit Issuer 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, shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank Letter of Credit Issuer 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 Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.3(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Agent, and the Agent shall promptly notify each Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's Percentage of such unreimbursed payment in U.S. Dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Agent its Percentage of such unreimbursed amount if the Letter of Credit was issued or the payment was made as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. If the Agent so notifies any Issuing Bank so notifies, Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the respective Letter of Credit Issuer such Issuing Bank the Participant's Percentage of the amount of such payment on such Business Day in same day fundsfunds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Participant shall make such payment on the immediately following Business Day). If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to such Issuing Bankthe Agent for the account of the respective Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 such Issuing Bank the Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank the Agent for the account of the respective Letter of Credit Issuer its Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Agent for the account of such Issuing Bank Letter of Credit Issuer its applicable Percentage of any payment under any such 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 the Agent for the account of such Issuing Bank Letter of Credit Issuer such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAgent shall promptly pay to each Participant which has paid its Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to the such Participant's Percentage of such payment the principal amount thereof and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Agent for the account of the respective Letter of Credit Issuer 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the 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, the Documentation Agent, any Issuing BankLetter of Credit Issuer, any BankLender, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower 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 the 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
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Bank, and each such Participant Bank (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bankthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantBank's Adjusted Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Banks as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments or Adjusted Percentages of the Participants Banks pursuant to Section 12.0412.04(b) or upon a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment ad justment to the participations pursuant to this Section 2.04 to reflect the new Adjusted Percentages of the assigning and assignee ParticipantBank or of all Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank the Letter of Credit Issuer under or in connection with any Letter of Credit Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability to any Participantthe Participants.
(c) In the event that any Issuing Bank the Letter of Credit Issuer makes any payment pay ment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.03(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account Letter of such Issuing Bank Credit Issuer, the amount of the such Participant's Adjusted Percentage of such unreimbursed payment in U.S. Dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Letter of Credit Issuer its Adjusted Percentage of such unreimbursed amount for 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. If the Administrative Agent so notifies any Issuing Bank so notifies, Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account Letter of Credit Issuer such Issuing Bank the Participant's Adjusted Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant Partici pant shall not have so made its Adjusted Percentage of the amount of such payment Unpaid Drawing available to such Issuing Bankthe Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account Letter of such Issuing BankCredit Issuer, 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 Bank the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Letter of Credit Issuer its Adjusted Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank the Letter of Credit Issuer its Adjusted 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 Bank the Letter of Credit Issuer such other Participant's Adjusted Percentage of any such payment.
(d) Whenever any Issuing Bank the Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of the Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent for the account of such Participanteach Participant which has paid its Adjusted Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Adjusted Percentage of such payment the principal amount thereof and interest thereon accruing at the overnight Federal Funds Effective Rate after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable irre vocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Participant shall be required to make payments resulting from the Letter of Credit Issuer's gross negligence or willful misconduct) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstancescircum stances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which 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 Documentation Agent, any Issuing Bank, any Bank, any Participant Bank or any other Person, whether in connection with this AgreementAgree ment, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 the Letter of Credit proving to be forged, fraudulent, or 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 (R&b Falcon Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bankthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantLender's Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Lenders as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments or Percentages of the Participants Lenders pursuant to Section 12.0413.04(b) or upon a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.05 to reflect the new Percentages of the assigning and assignee ParticipantLender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability to any Participant.they
(c) In the event that any Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer, the amount of the such Participant's Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Percentage of such unreimbursed amount for 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. If the Administrative Agent so notifies any Issuing Bank so notifies, Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment Unpaid Drawing available to such Issuing Bankthe Administrative Agent for the account of the Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe 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 such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer its Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer its 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 Bank the Administrative Agent for the account of the Letter of Credit Issuer such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank the Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of the Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage of such payment the principal amount thereof and interest thereon accruing at the overnight Federal Funds Effective Rate after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and (provided that no Participant shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:required to make payments resulting
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which 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 Documentation AgentLetter of Credit Issuer, any Issuing Bank, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 the Letter of Credit proving to be forged, fraudulent, or 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
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank shall be deemed to have sold and transferred to each Bank with a Revolving Loan Commitment, other than such Issuing Bank (each such other Bank Bank, in such capacityits capacity under this Section 2.03, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Adjusted Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or Adjusted Percentages of the Participants Banks pursuant to Section 12.04Sections 1.13, 13.04 or 13.12 or as a result of a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.03 to reflect the new Adjusted Percentages of the assigning assignor and assignee ParticipantBank or of all Banks with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective such Issuing Bank shall not have any no obligation relative to the Participants other Banks 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability to any Participant.Bank
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a2.04(a), such Issuing Bank shall promptly notify the Administrative Agent, which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the such Participant's Adjusted Percentage of such unreimbursed payment in Dollars (or, in the case of any unreimbursed payment made in a currency other than Dollars, of the Dollar Equivalent of such unreimbursed payment, as determined by the Issuing Bank on the date on which such unreimbursed payment was made by the Issuing Bank) and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York Chicago time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank in Dollars (or, in the case of any unreimbursed payment made in a currency other than Dollars, of the Dollar Equivalent thereof) such Participant's Adjusted Percentage of the amount of such payment on such Business Day (or, if notice is given after 11:00 A.M. (Chicago time) on any Business Day, on the next Business Day) in same day funds. If and to the extent such Participant shall not have so made its Adjusted Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any such Issuing Bank its Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Adjusted 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 Bank such other Participant's Adjusted Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank shall pay forward such payment to the Administrative Agent for the account of such ParticipantAgent, which in turn shall distribute to each Participant which has paid its Adjusted Percentage thereof, in Dollars (or, in the case of any payment received in a currency other than Dollars, of the Dollar Equivalent thereof) and in same day funds, an amount equal to the such Participant's Percentage share (based upon the aggregate amount funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agent, any Issuing Bank, any BankParticipant, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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.
Appears in 1 contract
Samples: Credit Agreement (Howmet Corp /New/)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Bank, and each such Participant Bank (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantBank's Adjusted Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Banks as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments or Adjusted Percentages of the Participants Banks pursuant to Section 12.0412.04(b) or upon a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.05 to reflect the new Adjusted Percentages of the assigning and assignee ParticipantBank or of all Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank any Letter of Credit Issuer under or in connection with any Letter of Credit Credit, if taken or omitted in the absence of gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantthe Participants.
(c) In the event that any Issuing Bank the respective Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's Adjusted Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Adjusted Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies any Issuing Bank so notifies, Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the respective Letter of Credit Issuer such Issuing Bank the Participant's Adjusted Percentage 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 Adjusted Percentage of the amount of such payment Unpaid Drawing available to the Administrative Agent for the account of such Issuing BankLetter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 for the account of such Issuing Bank Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer its Adjusted Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank respective Letter of Credit Issuer its Adjusted 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 the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer such other Participant's Adjusted Percentage of any such payment.
(d) Whenever any Issuing Bank the respective Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its Adjusted Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Adjusted Percentage of such payment the principal amount thereof and interest thereon accruing at the overnight Federal Funds Effective Rate after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided, however, that no Participant shall be required to make payments resulting from such Letter of Credit Issuer's gross negligence or willful misconduct) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which 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 Documentation Agentrespective Letter of Credit Issuer, any Issuing Bank, any Bank, any Participant Bank or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any the Letter of Credit proving to be forged, fraudulent, or 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 (Global Marine Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in its capacity under this Section 2.04, a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants RL Lenders pursuant to Section 12.041.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantRL Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's RL Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Fairchild Semiconductor International Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RF Lender, and each such Participant RF Lender (each, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the RF Lenders as provided in Section 2.01(c) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Commitments of the Participants pursuant to Section 12.041.13 or 11.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 1A.05 to reflect the new Percentages of the assigning and assignee ParticipantRF Lenders.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank applicable Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank any Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, misconduct as determined by a final judgment issued by a court of competent jurisdiction shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Letter of Credit Issuer pursuant to Section 2.05(a1A.04(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's ’s Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer as determined by a final judgment issued by a court of competent jurisdiction. If the Administrative Agent so notifies any Issuing Bank so notifies, Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. 1:00 P.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the respective Letter of Credit Issuer such Issuing Bank the Participant's ’s Percentage 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 Percentage of the amount of such payment Unpaid Drawing available to such Issuing Bankthe Administrative Agent for the account of the respective Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 for the account of such Issuing Bank Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer its Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer its 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 the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer such other Participant's ’s Percentage of any such payment.
(d) Whenever any Issuing Bank Letter of Credit Issuer receives a payment of a reimbursement obligation (including interest on Unpaid Drawings) as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from any Participant pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's ’s Percentage of such the amount of the payment of a such reimbursement obligation, including interest paid thereon to the extent accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Participant shall be required to make payments resulting from the Administrative Agent’s gross negligence or willful misconduct as determined by a final judgment issued by a court of competent jurisdiction) 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the 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, the Documentation Agentany Letter of Credit Issuer, any Issuing Bank, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 the 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.
(f) To the extent the respective Letter of Credit Issuer is not indemnified by the Borrower, the Participants will reimburse and indemnify such Letter of Credit Issuer, in proportion to their respective Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such Letter of Credit Issuer in performing its respective duties in any way relating to or arising out of its issuance of Letters of Credit; provided that no Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Letter of Credit Issuer’s gross negligence or willful misconduct as determined by a final judgment issued by a court of competent jurisdiction.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Revolving Lender, and each such Participant Revolving Lender (in its capacity under this Section 3.4, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.14 or 13.4, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.4 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Loan Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a3.5(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars (or, in respect of Letters of Credit denominated in an Alternate Currency, such Alternate Currency) and in same day funds. If any Issuing Bank the Administrative Agent so notifies, (x) prior to 11:00 A.M. 12:00 Noon (New York City time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account respective Issuing Lender in Dollars (or, in respect of Letters of Credit denominated in an Alternate Currency, such Issuing Bank the Alternate Currency) such Participant's ’s RL Percentage of the amount of such payment on such Business Day in same day funds, and (y) on or after 12:00 Noon (New York City 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 Dollars (or, in respect of Letters of Credit denominated in an Alternate Currency, such Alternate Currency) such Participant’s RL Percentage of the amount of such payment on the next succeeding Business Day in immediately available funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to such respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate for the first three (3) 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars (or, in respect of Letters of Credit denominated in an Alternate Currency, such Alternate Currency) and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation so received and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any ParticipantParticipant to the Administrative Agent, each respective Issuing Bank Lender shall furnish to the Administrative Agent (who will then deliver to such Participant Participant) copies of any standby Letter of Credit issued by it such Issuing Lender and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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:
(iA) any lack of validity or enforceability of this Agreement or any of the Credit other Loan Documents;
(iiB) the existence of any claim, setoff, counterclaim, recoupment, defense or other right which the Borrower 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between Holdings or any Subsidiary of Holdings and the beneficiary named in any such Letter of Credit);
(iiiC) 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;
(ivD) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; or
(vE) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender, other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 2.04, as "a “Participant"”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of credit, and each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments or Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning assignor and assignee ParticipantLender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit 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 proceeding, shall not create for such Issuing Bank Lender any resulting liability to the Borrower or any ParticipantLender.
(c) In the event that any Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, on or prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s Percentage 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 Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Base Rate Loans for each day thereafter. The failure of any Participant to make available to any an Issuing Bank Lender its 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 Bank Lender its Percentage of any payment under with respect to 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 Bank Lender such other Participant's ’s Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank Lender shall furnish to such Participant copies of any standby Letter of Credit or modifications or amendments thereto issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit issued thereunder shall be irrevocable and not subject to any qualification or exception whatsoever (the respective Issuing Lender’s only obligation being to confirm that any documents required to be delivered under such Letter of Credit have been delivered and that they substantially comply on their face with the requirements of such Letter of Credit) 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York City time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Global Cash Access Holdings, Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Revolving Lender, and each such Participant Revolving Lender (in its capacity under Section 2.03(b) and under this Section 2.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, ’s RL Percentage in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments RL Percentages of the Participants Revolving Lenders pursuant to Section 12.041.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning and assignee Participantrespective Revolving Lender or Revolving Lenders.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the Participants other Revolving 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any ParticipantLender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(ci) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each relevant Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 such Participant to make available to any an Issuing Bank Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any such other Participant of its obligation hereunder to make available to such Issuing Bank Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no such Participant shall be responsible for the failure of any such other Participant to make available to such Issuing Bank Lender such other Participant's ’s RL Percentage of any such payment.
(dc) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the respective Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such Participant, Participant which has paid its RL Percentage in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all such Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the funding of a reimbursement obligationthe respective participations.
(ed) Upon the request of any Participant, each respective Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(ge) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to any ParticipantBorrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 2:00 P.M. (New York City time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateEffective Rate for the first three days and at the interest rate applicable to Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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: Abl Credit Agreement (J.Jill, Inc.)
Letter of Credit Participations. (ai) Immediately upon the issuance by any Issuing Bank Facing Agent of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)under any Revolving Facility, such Issuing Bank Facing Agent shall be deemed to have sold and transferred to each Bank Multicurrency Revolving Lender under such Revolving Facility, other than such Issuing Bank Facing Agent (each such other Bank Revolving Lender, in such capacityits capacity under this Section 2.10(e), as "a “LC Participant"”), and each such LC Participant under such Revolving Facility shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankFacing Agent, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's PercentageMulticurrency Revolving Lender’s Multicurrency Revolver Pro Rata Share (in the case of a Letter of Credit issued under the Multicurrency Revolving Facility) or USD Revolver Pro Rata Share (in the case of a Letter of Credit issued under the USD Revolving Facility), in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing Drawing made thereunder and the obligations of the applicable Borrower under this Agreement with respect theretothereto (although Letter of Credit fees under any Revolving Facility shall be payable directly to the Administrative Agent for the account of the LC Participant under such Revolving Facility 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 the request of the Administrative Agent or the Required BanksUponWith respect to each Revolving Facility, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon upon any change in the Multicurrency Revolving Commitments of the Participants pursuant to Section 12.04Multicurrency Revolving Lenders under such Revolving Facility, it is hereby agreed that, with respect to all outstanding Letters of Credit under such Revolving Facility and Unpaid DrawingsDrawings relating to Letters of Credit issued under such Revolving Facility, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.10(e) to reflect the new Percentages Multicurrency Revolver Pro Rata Share (in the case of a Letter of Credit issued under the Multicurrency Revolving Facility) or USD Revolver Pro Rata Share (in the case of a Letter of Credit issued under the USD Revolving Facility) of the assigning assignor and assignee ParticipantLender or of all Lenders with Multicurrency Revolving Commitments under such Revolving Facility, as the case may be.
(bii) In determining whether to pay under any Letter of Credit, the respective Issuing Bank such Facing Agent shall not have any 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank any Facing Agent under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconductmisconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Issuing Bank Facing Agent any resulting liability to any Participant.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 Company or any of the Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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 DefaultLender.
Appears in 1 contract
Samples: Credit Agreement (BALL Corp)
Letter of Credit Participations. (ai) Immediately upon the issuance by any Issuing Bank Facing Agent of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Facing Agent shall be deemed to have sold and transferred to each Bank Multicurrency Revolving Lender, other than such Issuing Bank Facing Agent (each such other Bank Lender, in such capacityits capacity under this Section 2.10(e), as "a “LC Participant"”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankFacing Agent, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's PercentageMulticurrency Revolving Lender’s Multicurrency Revolver Pro Rata Share, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing Drawing made thereunder and the obligations of the applicable Borrower under this Agreement with respect theretothereto (although Letter of Credit fees shall be payable directly to the 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 the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Multicurrency Revolving Commitments of the Participants pursuant to Section 12.04Multicurrency Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating to Letters of Credit, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.10(e) to reflect the new Percentages Multicurrency Revolver Pro Rata Share of the assigning assignor and assignee ParticipantLender or of all Lenders with Multicurrency Revolving Commitments, as the case may be.
(bii) In determining whether to pay under any Letter of Credit, the respective Issuing Bank such Facing Agent shall not have any 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank any Facing Agent under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconductmisconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Issuing Bank Facing Agent any resulting liability to any Participant.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 Company or any of the Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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 DefaultLender.
Appears in 1 contract
Samples: Credit Agreement (Ball Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank a Letter of Credit Issuer of any Letter of Credit (or upon and on the Second Restatement Effective Closing Date in the case with respect to any Existing Letter of Letters of Credit existing on such dateCredit), such Issuing Bank Letter of Credit Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender with a Revolving Commitment, and each such Participant Lender (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantLender's Revolving Facility Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and thereunder, the obligations of the Borrower Borrowers under this Agreement with respect thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Lenders as provided in section 4.1(b) and the Participants shall have no right to receive any portion of any fees of the nature contemplated by section 4.1(c)), the obligations of any Letter of Credit Obligor under any Letter of Credit Documents pertaining thereto, and any security therefor for, or guaranty pertaining thereto. Upon the request to, any of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guarantiesforegoing. Upon any change in the Revolving Commitments of the Participants Lenders pursuant to Section 12.04section 13.4(c), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 section 3.4 to reflect the new Revolving Facility Percentages of the assigning and assignee ParticipantLender.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank a Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank a Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank a Letter of Credit Issuer makes any payment under any Letter of Credit and the applicable Borrower shall not have reimbursed (or caused any applicable Letter of Credit Obligor to reimburse) such amount in full to such Issuing Bank Letter of Credit Issuer pursuant to Section 2.05(asection 3.3(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's Revolving Facility Percentage of such unreimbursed payment in Dollars (the Administrative Agent having determined in the case of any payment by a Letter of Credit Issuer made in Euros the equivalent thereof in Dollars) and in same day funds, provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Revolving Facility Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of CreditCredit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such Participant shall make available to the Administrative Agent for the account of the relevant Letter of Credit Issuer such Issuing Bank the Participant's Revolving Facility Percentage 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 Revolving Facility Percentage of the amount of such payment available to such Issuing Bankthe Administrative Agent for the account of the relevant Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 for the account of such Issuing Bank Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the relevant Letter of Credit Issuer its Revolving Facility Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer its Revolving Facility 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 the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer such other Participant's Revolving Facility Percentage of any such payment.
(d) Whenever any Issuing Bank a Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (csection 3.4(c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its Revolving Facility Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Revolving Facility Percentage of such payment the principal amount thereof and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations, as and to the extent so received.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of each Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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 other Credit Documents;
(ii) the existence of any claim, setoff, set-off defense or other right which the Borrower (or any other Letter of Credit Obligor) may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person person for whom any such transferee may be acting), the Administrative Agent, the Documentation Agentany Letter of Credit Issuer, any Issuing BankLender, any Bank, any Participant or any other Personperson, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrowers (or any other Letter of Credit Obligor) and the beneficiary named in any such Letter of Credit), other than any claim which the Borrowers (or any other Letter of Credit Obligor which is the account party with respect to a Letter of Credit) may have against any applicable Letter of Credit Issuer for gross negligence or wilful misconduct of such Letter of Credit Issuer in making payment under any applicable Letter of Credit;
(iii) any draft, certificate or any other document presented under any the 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.
(f) To the extent the Letter of Credit Issuer is not indemnified by the Borrowers, the Participants will reimburse and indemnify the Letter of Credit Issuer, in proportion to their respective Revolving Facility Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Letter of Credit Issuer in performing its respective duties in any way related to or arising out of its issuance of Letters of Credit, provided that no Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the Letter of Credit Issuer's gross negligence or willful misconduct.
Appears in 1 contract
Samples: Credit Agreement (Om Group Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank Revolving Lender (each such other Bank Revolving Lender, in such capacityits capacity under this Section 2.04, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, RL Percentage in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Facing Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.041.13 or 12.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the Participants therein 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such an Issuing Bank Lender any resulting liability to any ParticipantRevolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted 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 decision).
(c) In the event that any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such the respective Issuing Bank Lender, the amount of the such Participant's RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 2.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York timeLocal Time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the respective Issuing Lender in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 2.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) such Issuing Bank the Participant's RL Percentage 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 RL Percentage of the amount of such payment available to such the Administrative Agent for the account of the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate (or, in the case of amounts owed in a Primary Alternate Currency, the Administrative Agent's customary rate for interbank advances in the relevant Primary Alternate Currency) for the first three days and at the interest rate applicable to Revolving Loans maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to any the Administrative Agent for the account of an Issuing Bank its Lender such Participant's RL 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 the Administrative Agent for the account of such Issuing Bank its Lender such Participant's RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender such other Participant's RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Issuing Lender any payments from any Participant the respective Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for and the account of Administrative Agent shall promptly pay to each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars (or in the respective Primary Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 2.05(a)) and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the respective Participants to make payments to any the Administrative Agent for the account of each Issuing Bank 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the Borrower any Revolving Borrower, any other Credit Party or any Subsidiary thereof 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 Documentation Agentsuch Issuing Lender, any Issuing Bank, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between any Revolving Borrower, any other Credit Party or any Subsidiary thereof and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any the 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
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any Letter of Credit (or upon the Second Restatement Effective Date in the case Issuer of Letters a Letter of Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")with a Revolving Credit Commitment, and each such Participant Bank (each an “L/C Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Bank’s Revolver Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Banks as provided in Section 2.7(b) and the L/C Participants shall have no right to receive any portion of any Fronting Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Credit Commitments or Revolver Percentages of the Participants Banks pursuant to Section 12.042.16 or 10.6(c), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2A.5 to reflect the new Revolver Percentages of the assigning and assignee ParticipantBanks.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any obligation relative to the L/C Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank any Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, misconduct (as determined by a court of competent jurisdiction) shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank the respective Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Letter of Credit Issuer pursuant to Section 2.05(a2A.4(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each L/C Participant of such failure, and each L/C Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such L/C Participant's ’s Revolver Percentage of such unreimbursed payment in Dollars the currency of such payment and in same day funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent its Revolver Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence (as determined by a court of competent jurisdiction) on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies any Issuing Bank so notifies, L/C Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. a.m. (New York Chicago, Illinois time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent for the account of the respective Letter of Credit Issuer (which funds the Administrative Agent shall promptly forward to the Letter of Credit Issuer) such Issuing Bank the Participant's ’s Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such L/C Participant shall not have so made its Revolver Percentage of the amount of such payment Unpaid Drawing available to the Administrative Agent for the account of such Issuing BankLetter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 for the account of such Issuing Bank Letter of Credit Issuer at the overnight Federal Funds Rate for the first two (2) Business Days after such payment by such Bank is due, and thereafter, at the Base Rate, or in the case of an amount denominated in Canadian Dollars, the cost to the Administrative Agent of funding the amount so advanced by the Administrative Agent to fund such Bank’s amount, as reasonably determined by the Administrative Agent for the first two (2) Business Days after such payment by such Bank is due, and thereafter, at the Canadian Base Rate. The failure of any L/C Participant to make available to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer its Revolver Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other L/C Participant of its obligation hereunder to make available to such Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer its Revolver Percentage of any payment under any 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 Bank Letter of Credit Issuer such other L/C Participant's ’s Revolver Percentage of any such payment.
(d) Whenever any Issuing Bank the respective Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the L/C Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each L/C Participant which has paid its Revolver Percentage thereof, in Dollars the applicable currency, and in same day funds, an amount equal to the such L/C Participant's ’s Revolver Percentage of the principal amount thereof and interest thereon accruing at the Federal Funds Rate, in the case of U.S. Dollars, or at the cost to the Administrative Agent of funding the amount so advanced by the Administrative Agent to fund such payment amount, as determined by the Administrative Agent after the purchase of a reimbursement obligationthe respective participations, in the case of Canadian Dollars.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the L/C Participants to make payments to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no L/C Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction)) 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the 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, the Documentation Agentrespective Letter of Credit Issuer, any Issuing Bank, any Bank, any Participant Bank or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower 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 the 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.
(f) To the extent the respective Letter of Credit Issuer is not indemnified for same by the Borrower, the L/C Participants will reimburse and indemnify the Letter of Credit Issuer, in proportion to their respective Revolver Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such Letter of Credit Issuer in performing its respective duties in any way relating to or arising out of its issuance of Letters of Credit; provided that no L/C Participant shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Letter of Credit Issuer’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction).
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower U.S. Borrowers or, the Dutch Borrowers or the UK Borrowers, as the case may be, under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.13, 2.14, 2.15 or 13.0413.05(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to any ParticipantBorrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower U.S. Borrowers or, the Dutch Borrowers or the UK Borrowers, as applicable, shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in U.S. Dollars (or, in the case of any unreimbursed payment made in Euros or an Acceptable Foreign Currency, such currency) and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 2:00 P.M. (New York City time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for respective Issuing Lender in U.S. Dollars (or, in the account case of any unreimbursed payment made in Euros or an Acceptable Foreign Currency, such Issuing Bank the currency) such Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate (or, in the case of any 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 to make available to any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in U.S. Dollars (or, in the case of any unreimbursed payment made in Euros or an Acceptable Foreign Currency, such currency) and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, including 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, setoff, defense or other right which the Borrower Company 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Company or any Subsidiary of the Company 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, or the failure of any of the other conditions specified in Section 6 or 7 to be satisfied.
Appears in 1 contract
Samples: Abl Credit Agreement (Tesla, Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Revolver Lender, and each such Participant Revolver Lender (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bankthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantRevolver Lender's Dollar Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower Workflow under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Agent for the account of the Revolver Lenders as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon any change in the request Revolving Commitments or Dollar Percentages of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held Revolver Lenders pursuant to this Agreement by any Bank (or in such security interests and guaranties. Upon the circumstances provided in the proviso to the immediately preceding sentence, upon any change in the Commitments Percentages of the Participants Revolver Lenders pursuant to Section 12.04this Agreement), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Dollar Percentages or, in the circumstances described in the proviso to the immediately preceding sentence, the new Percentages of the assigning and assignee Participantvarious Revolver Lenders.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank the Letter of Credit Issuer under or in connection with any Letter of Credit Credit, if taken or omitted in the absence of gross negligence or willful misconductmisconduct (as finally determined by a court of competent jurisdiction), shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability to any ParticipantPerson.
(c) In the event that any Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower Workflow shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.03(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Agent, and the Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer, the amount of the such Participant's Dollar Percentage of such unreimbursed payment in Dollars and in same day funds, provided that no Participant shall be obligated to pay to the Agent its Dollar Percentage of such unreimbursed amount for 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 (as finally determined by a court of competent jurisdiction). If the Agent so notifies any Issuing Bank so notifies, Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer such Issuing Bank the Participant's Dollar Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Dollar Percentage of the amount of such payment available to such Issuing Bankthe Agent for the account of the Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe 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 such Issuing Bank the Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Agent for the account of the Letter of Credit Issuer its Dollar Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank the Agent for the account of the Letter of Credit Issuer its Dollar 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 Bank the Agent for the account of the Letter of Credit Issuer such other Participant's Dollar Percentage of any such payment.
(d) Whenever any Issuing Bank the Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Agent has received for the account of the Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAgent shall promptly pay to each Participant which has paid its Dollar Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Dollar Percentage of such payment the principal amount thereof and interest thereon accruing after the actual funding of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (except as otherwise expressly provided in the proviso to the first sentence in Section 2.04(c)) 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the Borrower Workflow 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, the Documentation AgentCredit, any Issuing Bank, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between Workflow or any such Subsidiary and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any the 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
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any each Letter of Credit (or upon Issuance, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender with a Revolving Commitment, and each such Participant Lender (each a “Letter of Credit Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participationparticipation (an “Letter of Credit Participation”), to the extent of such Participant's PercentageLender’s Revolving Facility Percentage of the Stated Amount of such Letter of Credit in effect at such time of issuance, in such Letter of Credit of such Issuing BankCredit, each substitute letter Letter of creditCredit, each drawing made thereunder and thereunder, the obligations of the Borrower any Letter of Credit Obligor under this Agreement with respect thereto (although Letter of Credit Fees relating thereto shall be payable directly to the Administrative Agent for the account of the Lenders as provided in Section 4.1 and the Letter of Credit Participants shall have no right to receive any portion of any fees of the nature contemplated by Section 4.1(c) or Section 4.1(e)), the obligations of any Letter of Credit Obligor under any Letter of Credit Documents pertaining thereto, and any security therefor for, or guaranty pertaining thereto. Upon the request to, any of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments of the Participants pursuant to Section 12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning and assignee Participantforegoing.
(b) In determining whether to pay under any Letter of Credit, If the respective Issuing Bank shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability to any Participant.
(c) In the event that any Issuing Bank Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed (or any applicable Letter of Credit Obligor shall not have reimbursed) such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a)3.8, such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant Lender of the Honor Date, the amount of the Unpaid Drawing, and the amount of such failureLender’s Revolving Facility Percentage thereof. In such event, the Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unpaid Drawing, without regard to the minimum and multiples specified in Section 2.5(c) for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Total Revolving Commitments and the conditions set forth in Section 6.2 (other than the delivery of a Notice of Borrowing). Any notice given by the Letter of Credit Issuer or the Administrative Agent pursuant to this Section 3.9(b) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice. Each Lender shall upon any notice pursuant to this Section 3.9(b) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the Letter of Credit Issuer at the Administrative Agent’s Office in an amount equal to its Revolving Facility Percentage of the Unpaid Drawing not later than 1:00 P.M. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 3.9(d), each Participant Lender that so makes funds available shall promptly be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Letter of Credit Issuer.
(c) With respect to any Unpaid Drawing that is not fully refinanced by a Borrowing of Base Rate Loans because the conditions set forth in Section 6.2 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the Letter of Credit Issuer an L/C Borrowing in the amount of the Unpaid Drawing that is not so refinanced, which L/C Borrowing shall be due and unconditionally pay payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit Issuer pursuant to Section 3.9(c) shall not relieve any other Participant be deemed payment in respect of its obligation hereunder to make available to such Issuing Bank its Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant Participation in such L/C Borrowing and shall be responsible for the failure constitute an L/C Advance from such Lender in satisfaction of any other Participant to make available to such Issuing Bank such other Participant's Percentage its Letter of any such paymentCredit Participation under this Article III.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant Until each Lender funds its Base Rate Loans or L/C Advance pursuant to clause (c) abovethis Section 3.9 to reimburse the Letter of Credit Issuer for any amount drawn under any Letter of Credit, interest in respect of such Issuing Bank Lender’s Revolving Facility Percentage of such amount shall pay to the Administrative Agent be solely for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage Letter of such payment of a reimbursement obligationCredit Issuer.
(e) Upon Each Lender’s obligation to make Base Rate Loans or L/C Advances to reimburse the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible Issuer for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such amounts drawn under Letters of Credit, or (B) any document submitted as contemplated by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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.this
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by any the Issuing Bank of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters of Credit existing on such date), such Issuing Bank shall be deemed to have sold and transferred to each Bank other than such Issuing RL Bank (each such other Bank RL Bank, in such capacityits capacity under this Section 2.03, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Bank, without recourse or warranty, an undivided interest and participationparticipation (each a "Participation"), to the extent of such Participant's Percentage, RL Percentage in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request thereto (although Letter of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, Credit Fees will be paid directly to the Administrative Agent or for the Collateral Agent but ratable account of the Participants as provided in Section 3.01(b) and the Participants shall have no right to receive any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by portion of any Bank in such security interests and guarantiesFacing Fees). Upon any change in the Revolving Loan Commitments of the Participants Banks pursuant to Section 12.0412.04 or otherwise, it is hereby agreed that, with respect to all outstanding Letters of Credit Credit, and Unpaid Drawings, there shall be an automatic adjustment to the participations Participations pursuant to this Section 2.04 2.03 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantBank.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank shall not have any no obligation relative to the 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 substantially comply on their face with the requirements of such Letter of Credit. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such the Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank any resulting liability to any Participantliability.
(c) In the event that any the Issuing Bank makes any payment under any Letter of Credit and the appropriate Borrower shall not have reimbursed such amount in full to such the Issuing Bank pursuant to Section 2.05(a2.04(a), such the Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such the Issuing Bank Bank, the amount of the such Participant's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such the Issuing Bank the such Participant's RL Percentage of the amount of such payment on such Business Day in U.S. dollars and in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to such the Administrative Agent for the account of the Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such the Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Administrative Agent for the account of the Issuing Bank at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any the Administrative Agent for the account of the Issuing Bank its RL Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such the Administrative Agent for the account of the Issuing Bank its RL 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 Bank the Administrative Agent, such other Participant's RL Percentage of any such payment.
(d) Whenever any the Issuing Bank receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of the Issuing Bank any payments from any Participant the Participants pursuant to clause (c) above, such the Issuing Bank shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its RL Percentage thereof, in Dollars U.S. dollars and in same day funds, an amount equal to the such Participant's RL Percentage of the principal amount of such payment reimbursement and of a reimbursement obligationinterest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the each Borrower and the respective Issuing Bank, the such Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by by, the respective beneficiaries of such Letters of CreditCredit issued for the account of such Borrower. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(viv) errors in interpretation of technical terms;
(viv) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(viivi) the misapplication by the beneficiary of any such Letter of Credit of or the proceeds of any drawing of any such Letter of Credit; and
(viiivii) any consequences arising from causes beyond the control of such the Issuing Bank, including including, without limitation limitation, any acts of governments.
(gf) The obligations of the Participants to make payments to any the Administrative Agent for the account of the Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever (except as otherwise provided in the final sentence of Section 2.03(b)) 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the any 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, the Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between a Borrower or a Subsidiary thereof and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any the 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 (Ocih LLC)
Letter of Credit Participations. (a) Immediately upon the issuance by any each Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender, other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 2.04, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the US Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of CreditCredit issued by it, the respective no Issuing Bank Lender shall not have any an obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the US Borrower, any Participantother Credit Party, any Lender 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).
(c) In the event that any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the US Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and and, except as provided in the proviso of the immediately succeeding sentence, each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's Percentage of such unreimbursed payment in Dollars (or, in the case of any unreimbursed payment made in a currency other than Dollars, of the Dollar Equivalent of such unreimbursed payment, as determined by the respective Issuing Lender on the date on which such unreimbursed payment was made by such Issuing Lender) and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for respective Issuing Lender in Dollars (or, in the account case of any unreimbursed payment made in a currency other than Dollars, of the Dollar Equivalent thereof) such Issuing Bank the Participant's Percentage of the amount of such payment on such Business Day in same day funds; provided, however, that no Participant shall be obligated to pay to the respective Issuing Lender its Percentage of such unreimbursed amount for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Base Rate Loans for each day thereafter. The failure of any Participant to make available to any the respective Issuing Bank Lender its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank Lender its 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 Bank Lender such other Participant's Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of such Participanteach Participant which has paid its Percentage thereof, in Dollars (or, in the case of any payment received in a currency other than Dollars, of the Dollar Equivalent thereof) and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever (except as otherwise provided in the proviso to the second sentence of Section 2.04(c)) 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the US 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, the Documentation Agent, any Issuing Bank, any BankLender, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the US Borrower or any Subsidiary of the US 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 (Sitel Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.13, 2.14, 2.15 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York City time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate for the first three (3) days and at the interest rate applicable to Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (in its capacity under Section 2.03(b) and under this Section 2.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, ’s RL Percentage in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments RL Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning and assignee Participantrespective Lender or Lenders.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(ci) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each relevant Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 such Participant to make available to any an Issuing Bank Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any such other Participant of its obligation hereunder to make available to such Issuing Bank Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no such Participant shall be responsible for the failure of any such other Participant to make available to such Issuing Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the respective Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such Participant, Participant which has paid its RL Percentage in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all such Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the funding of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Magellan 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between Magellan or any Subsidiary of Magellan 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: Senior Secured Revolving Credit Facility (Magellan Health Services Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank a Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (each a "PARTICIPANT") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantLender's PF Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Lenders as provided in section 3.1(b) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the PF Commitments of the Participants Lenders pursuant to Section 12.04section 12.4(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 section 2.4 to reflect the new PF Percentages of the assigning and assignee ParticipantLender.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank a Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank a Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank a Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Letter of Credit Issuer pursuant to Section 2.05(asection 2.3(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's PF Percentage of such unreimbursed payment in Dollars U.S. dollars and in same day funds, PROVIDED, HOWEVER, that no Participant shall be obligated to pay to the Administrative Agent its Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of CreditCredit prior to 11:00 A.M. (Cleveland, Ohio time) on any Business Day, such Participant shall make available to the Administrative Agent for the account of the relevant Letter of Credit Issuer such Issuing Bank the Participant's PF Percentage 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 PF Percentage of the amount of such payment available to such Issuing Bankthe Administrative Agent for the account of the relevant Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 for the account of such Issuing Bank Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the relevant Letter of Credit Issuer its PF Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer its PF 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 the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer such other Participant's PF Percentage of any such payment.
(d) Whenever any Issuing Bank a Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (csection 2.4(c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its PF Percentage thereof, in Dollars U.S. dollars and in same day funds, an amount equal to the such Participant's PF Percentage of such payment the principal amount thereof and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations, as and to the extent so received.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of each Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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 other Loan Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which 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 person for whom any such transferee may be acting), the Administrative Agent, the Documentation Agentany Letter of Credit Issuer, any Issuing BankLender, any Bank, any Participant or any other Personperson, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit), other than any claim which the Borrower (or any Subsidiary which is the account party with respect to a Letter of Credit) may have against any applicable Letter of Credit Issuer for gross negligence or wilful misconduct of such Letter of Credit Issuer in making payment under any applicable Letter of Credit;
(iii) any draft, certificate or any other document presented under any the 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 Loan Documents; : or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (First Union Real Estate Equity & Mortgage Investments)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any a Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments or Percentages of the Participants Lenders pursuant to Section 12.042.12 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new Percentages of the assigning assignor and assignee ParticipantLender, as the case may be. Upon any change in the Commitments or Percentages of the Lenders in connection with an Extension Amendment pursuant to Section 2.14, including the termination of the Commitments of any Lenders that are not Extending Lenders, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new Percentages of the Extending Lenders and such non-Extending Lenders.
(b) In determining whether to pay under any a Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount the Unpaid Drawing in full to such Issuing Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s Percentage of such unreimbursed payment Unpaid Drawing in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. a.m. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s Percentage 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 Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate for the first three days and at the Base Rate plus 2.00% for each day thereafter. The failure of any Participant to make available to any an Issuing Bank Lender its 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 Bank Lender its 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 Bank Lender such other Participant's ’s Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank a Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Revolving Loan Lender, and each such Participant Revolving Loan Lender (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter Letter of creditCredit, each drawing made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Lenders as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees with respective to such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments of the Participants Revolving Loan Lenders pursuant to Section 12.041.13 or 12.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning and assignee ParticipantLender.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank no Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank any Letter of Credit Issuer under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of such a finding of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the applicable Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.03(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's Percentage of such unreimbursed payment in U.S. Dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit issued by it as a result of acts or omissions that have been found to constitute willful misconduct or gross negligence, as determined by a court of competent jurisdiction, on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies any Issuing Bank so notifies, Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the respective Letter of Credit Issuer such Issuing Bank the Participant's Percentage of the amount of such payment on such Business Day in same day fundsfunds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Participant shall make such payment on the immediately following Business Day). If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to such Issuing Bankthe Administrative Agent for the account of the respective Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer its Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer its applicable Percentage of any payment under any such 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 the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to the such Participant's Percentage of such payment the principal amount thereof and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer with respect to Letters each Letter 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the applicable Borrower or any of their respective 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, the Documentation Agentany Letter of Credit Issuer, any Issuing BankLender, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the applicable Borrower or any of their respective Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any the 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
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RC Bank, and each such Participant RC Bank (each, a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Adjusted RC Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although the Letter of Credit Fee shall be 14 payable directly to the Agent for the account of the XX Xxxxx as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Commitments or Adjusted RC Percentages of the Participants XX Xxxxx pursuant to Section 12.0412.04(b) or upon a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.05 to reflect the new Adjusted RC Percentages of the assigning and assignee ParticipantRC Bank or of all XX Xxxxx, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to strictly comply on their face with the requirements of such Letter of Credit. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank the Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Agent, and the Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer, the amount of the such Participant's Adjusted RC Percentage of such unreimbursed payment in Dollars U.S. dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Agent its Adjusted RC Percentage of such unreimbursed amount for 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. If the Agent so notifies any Issuing Bank so notifies, Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer such Issuing Bank the Participant's Adjusted RC Percentage 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 Adjusted RC Percentage of the amount of such payment Unpaid Drawing available to such Issuing Bankthe Agent for the account of the Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe 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 such Issuing Bank the Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make 15 available to any Issuing Bank the Agent for the account of the Letter of Credit Issuer its Adjusted RC Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank the Agent for the account of the Letter of Credit Issuer its Adjusted RC 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 Bank the Agent for the account of the Letter of Credit Issuer such other Participant's Adjusted RC Percentage of any such payment.
(d) Whenever any Issuing Bank the Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Agent has received for the account of the Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAgent shall promptly pay to each Participant which has paid its Adjusted RC Percentage thereof, in Dollars U.S. dollars and in same day funds, an amount equal to the such Participant's Adjusted RC Percentage of such payment the principal amount thereof and interest thereon accruing at the overnight Federal Funds Effective Rate after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Participant shall be required to make payments resulting from the Agent's gross negligence or willful misconduct) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the 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, the Documentation AgentLetter of Credit Issuer, any Issuing Bank, any Bank, any Participant Bank or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 the 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.
(f) To the extent the Letter of Credit Issuer is not indemnified by the Borrower, the Participants will reimburse and indemnify the Letter of Credit Issuer, in proportion to their respective "percentages" of the Total Revolving Commitment, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Letter of Credit Issuer in performing its respective duties in any way relating to or arising out of its issuance of Letters of Credit; provided that no Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Letter of Credit Issuer's gross negligence or willful misconduct.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Lender of any Standby Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters of Credit existing on such date), such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender (other than such the Issuing Bank (each such other Bank in such capacity, as "Participant"Lender), and each such Participant Lender shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation, in proportion to the extent of such ParticipantLender's PercentagePro Rata Share, in such Standby Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guarantiescollateral therefor. Upon any change in the Commitments a Lender's Pro Rata Share of the Participants pursuant to Section 12.04Revolving Loan Commitment, it is hereby agreed that, that with respect to all outstanding Standby Letters of Credit and Unpaid DrawingsCredit, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.3(d) to reflect the new Percentages Pro Rata Share of the Revolving Loan Commitment of the assigning and assignee Participant.
(b) Lenders. In determining whether to pay under any Standby Letter of Credit, the respective Issuing Bank Lender shall not have any no obligation relative to the Participants Lenders other than to confirm that any documents required to be delivered under such Standby Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Standby Letter of Credit. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such the Issuing Bank Lender under or in connection with any Standby Letter of Credit Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank Lender any resulting liability to any Participant.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day fundsLender. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any ParticipantLender, each respective the Issuing Bank Lender shall furnish to such Participant Lender copies of any Standby Letter of Credit issued by it to which the Issuing Lender is party and such other documentation relating to such Standby Letter of Credit as may reasonably be requested by such Participant.
(f) Lender. As between the Borrower on the one hand and the respective Issuing BankLender and the Lenders on the other hand, the Borrower assumes all risks of the acts and omissions of, or misuse of of, the Standby Letters of Credit by the respective beneficiaries of such Standby Letters of Credit. Further, and not in limitation Without limiting the generality of the foregoing, neither the respective Issuing Bank Lender nor any other Lender shall not be responsible (except in the case of its gross negligence or willful misconduct) for the following:
(iA) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter Standby Letters of Credit, even if (in the case of (A) or (B)) such document it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(iiB) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Standby Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iiiC) failure of the beneficiary of any such Standby Letter of Credit to comply fully with conditions required in order to draw upon such Standby Letter of Credit, other than material conditions or instructions that expressly appear in such Standby Letter of Credit;
(ivD) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipherare encoded;
(vE) errors in interpretation of technical terms;
(viF) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Standby Letter of Credit or the proceeds thereof;
(viiG) the misapplication by the beneficiary of any such Standby Letter of Credit of the proceeds of any drawing of any such Standby Letter of Credit; andor
(viiiH) any consequences arising from causes beyond the control of such the Issuing BankLender, including without limitation any acts of governments.
(g) . The obligations of the Participants Lenders to make payments to any the Agent for the account of the Issuing Bank Lender with respect to Standby Letters of Credit shall be irrevocable and not subject to any 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:
(iA) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(iiB) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Standby Letter of Credit, any transferee of any Standby Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Documentation AgentIssuing Lender, any Issuing BankLender, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Standby Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(iiiC) any draft, certificate or any other document presented under any the Standby Letter of Credit proving shall prove to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being shall prove to be untrue or inaccurate in any respect;
(ivD) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or;
(vE) the occurrence of any Event of Default or Potential Event of Default; or
(F) the termination of this Agreement or any Commitment.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by any Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender, other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 2.04, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of credit, and each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments or Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning assignor and assignee ParticipantLender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective such Issuing Bank Lender shall not have any no obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank Lender under or in connection with any Letter of Credit 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 proceeding, shall not create for such Issuing Bank Lender any resulting liability to the Borrower or any ParticipantLender.
(c) In the event that any Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Lender in Dollars such Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Base Rate Loans for each day thereafter. The failure of any Participant to make available to any such Issuing Bank Lender its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank Lender its Percentage of any payment under with respect to 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 Bank Lender such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of such Participanteach Participant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank the Administrative Agent shall furnish deliver to such Participant copies of any Letter standby Letters of Credit issued by it or modifications or amendments thereto and such other documentation as may be reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit issued thereunder shall be irrevocable and not subject to any qualification or exception whatsoever (the respective Issuing Lender's only obligation being to confirm that any documents required to be delivered under such Letter of Credit have been delivered and that they substantially comply on their face with the requirements of such Letter of Credit) 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between any 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 (Waters Corp /De/)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Facing Agent of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Facing Agent shall -------------------------------- be deemed to have sold and transferred to each Bank Revolving Lender, other than such Issuing Bank Facing Agent (each such other Bank Lender, in such capacityits capacity under this Section 2.8(e), as a "LC Participant"), and each such LC Participant shall be deemed irrevocably and unconditionally to have --------------- --------------- purchased and received from such Issuing BankFacing Agent, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantRevolving Lender's PercentageRevolver Pro Rata Share, in such Letter of Credit of such Issuing BankCredit, each substitute letter Letter of creditCredit, each drawing Drawing made thereunder and the obligations of the Borrower Company under this Agreement with respect theretothereto (although Letter of Credit fees shall be payable directly to Administrative Agent for the account of the LC Participant as provided in Section 2.8(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 the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Commitments of the Participants pursuant to Section 12.04Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating to Letters of Credit, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.8(e) to reflect -------------- the new Percentages Revolver Pro Rata Share of the assigning assignor and assignee Participant.
(b) Lender or of all Lenders with Revolving Commitments, as the case may be. In determining whether to pay under any Letter of Credit, the respective Issuing Bank Facing Agent shall not have any 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank 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 misconductmisconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Issuing Bank Facing Agent any resulting liability to any Participant.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 Company or any of the Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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 DefaultLender.
Appears in 1 contract
Samples: Credit Agreement (Us Can Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.13 or 14.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to any ParticipantBorrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York City time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage of the amount of such payment on such Business Day in same day funds, whereupon such Participants shall (subject to Section 3.04(d)) each be deemed to have made a Revolving Loan that is a Base Rate Loan to the Borrowers in that amount. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to such respective Issuing BankLender by no later than 2:00 p.m. (New York City time) with respect to any Letter of Credit on the Drawing Date, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 Administrative Agent will promptly give notice of the occurrence of the Drawing Date, but failure of the Administrative Agent to give any such notice on the Drawing Date or in sufficient time to enable any RL Lender to effect such payment on such date shall not relieve such Lender from its obligation under this Section 3.04(c) provided that such Lender shall not be obligated to pay interest as provided in Section 4.01 until and commencing from the date of receipt of notice from the Administrative Agent of a drawing. The failure of any Participant to make available to any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment. Each RL Lender’s payment to the Issuing Lender pursuant to this Section 3.04(c) shall be deemed to be a payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a “Participation Revolving Loan” from such Lender in satisfaction of its Revolving Loan Commitment under this Section 3.04.
(d) With respect to any unreimbursed drawing that is not converted into a Revolving Loan to the Borrowers in whole or in part as contemplated by Section 3.05(a), because of the failure of the Borrowers to satisfy the conditions set forth in Sections 7 or 8 (other than any notice requirements) or for any other reason, the Borrowers shall be deemed to have incurred from the Issuing Lender a borrowing (each a “Letter of Credit Borrowing”) in the currency in which such Letter of Credit is denominated in the amount of such drawing. Such Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the rate per annum equal to the interest rate on Revolving Loans that are Base Rate Loans.
(e) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(ef) If the Issuing Lender is required at any time to return to the Borrowers or to a trustee, receiver, liquidator, custodian, or any official in any Insolvency Event, any portion of the payments made by a Borrower to the Issuing Lender pursuant to Section 3.05 in reimbursement of a payment made under any Letter of Credit or interest or fee thereon, each RL Lender shall, on demand of the Issuing Lender, forthwith return to the Issuing Lender the amount of its applicable pro rata share of any amounts so returned by the Issuing Lender plus interest at the Federal Funds Rate.
(g) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(gh) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower 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, the Documentation Collateral Agent, any Issuing BankParticipant, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 Credit Documents; orand
(v) the occurrence of any Default or Event of Default.
(i) Each Participant’s Revolving Loan Commitment shall continue until the last to occur of any of the following events: (x) the Issuing Lender ceases to be obligated to issue or cause to be issued Letters of Credit hereunder; (y) no Letter of Credit issued or created hereunder remains outstanding and uncanceled and (z) all Secured Parties have been fully reimbursed for all payments made under or relating to Letters of Credit.
Appears in 1 contract
Samples: Credit Agreement (STG Group, Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender with a Commitment, other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 3.03, as "a “Participant"”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments or Percentages of the Participants Lenders pursuant to Section 12.04Sections 2.12 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.03 to reflect the new Percentages of the assigning assignor and assignee ParticipantLender or of all Lenders with Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective such Issuing Bank Lender shall not have any no obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled Subject to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations provisions of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Lender any resulting liability to any ParticipantCredit Party or any Lender.
(c) In the event that any Issuing Bank 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 Bank Lender pursuant to Section 2.05(a3.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of such Participant’s Percentage (as relates to the Participant's Percentage respective Letter of Credit) of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of such Issuing Bank Lender in Dollars such Participant’s Percentage (as relates to the Participant's Percentage 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 Percentage of the amount of such payment available to the Administrative Agent for the account of such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 for the account of such Issuing Bank Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to any the Administrative Agent for the account of such Issuing Bank Lender its Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Lender its Percentage of any payment under any such 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 the Administrative Agent for the account of such Issuing Bank Lender such other Participant's ’s Percentage of any such payment.
(d) Whenever any Issuing Bank Lender receives a payment of a reimbursement obligation as to which it the Administrative Agent has received (for the account of any such Issuing Lender) any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent for the account of such ParticipantAgent, which in Dollars and turn shall distribute to each Participant which has paid its Percentage thereof, in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon Each Issuing Lender shall, promptly after the request of any Participantissuance of, each respective Issuing Bank shall furnish to such Participant copies of any or amendment to, a Letter of Credit issued by it give the Administrative Agent and the Borrower written notice of such issuance or amendment, as the case may be, and such other documentation notice shall be accompanied by a copy of the issued Letter of Credit or amendment, as the case may reasonably be requested by be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Participant, in writing, of such issuance or amendment and in the event a Participant shall so request, the Administrative Agent shall furnish such Participant with a copy of such issuance or amendment.
(f) As between Each Issuing Lender shall deliver to the Borrower and Administrative Agent, promptly on the respective Issuing Bankfirst Business Day of each week, by facsimile transmission, the Borrower assumes all risks of aggregate daily Stated Amount available to be drawn under the acts and omissions of, or misuse of the outstanding Letters of Credit issued by such Issuing Lender for the respective beneficiaries previous week. Upon request, the Administrative Agent shall, within 10 days after the last Business Day of each calendar month, deliver to each Participant a report setting forth for such preceding calendar month the aggregate daily Stated Amount available to be drawn under all outstanding Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of Credit during such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentscalendar month.
(g) The obligations of the Participants to make payments to any the Administrative Agent for the account of the respective Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Lender, any Issuing BankLender, any BankParticipant, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower 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.
Appears in 1 contract
Letter of Credit Participations. (a) i Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender, other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 2.14(c), as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Commitment Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect theretothereto (excluding the Facing Fee), and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments Commitment Percentages of the Participants Lenders pursuant to Section 12.04hereto, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.14(c) to reflect the new Commitment Percentages of the assigning assignor and assignee ParticipantLender or of all Lenders, as the case may be.
(b) ii In determining whether to pay under any Letter of Credit, the respective Issuing Bank Lender shall not have any no obligation relative to the 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 comply on their face with the requirements of such Letter of Credit. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank Lender under or in connection with any Letter of Credit Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank Lender any resulting liability to the Borrower or any ParticipantLender.
(c) iii In the event that any Issuing Bank Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a2.14(d)(i), such Issuing Bank Lender shall promptly notify the Agent, which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's Commitment Percentage of such unreimbursed payment in Dollars and in same day funds. If the Agent so notifies any Issuing Bank so notifies, Participant prior to 11:00 A.M. (New York Boston time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available such funds to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage of the amount of such payment Lender on such Business Day in same day fundsDay. If and to the extent such Participant shall not have so made its Commitment Percentage of the amount of such payment available to such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds Ratefederal funds rate. The failure of any Participant to make available to any such Issuing Bank Lender its Commitment Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank Lender its Commitment 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 Bank Lender such other Participant's Commitment Percentage of any such payment.
(d) iv Whenever any Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent for the account of such ParticipantAgent, which in turn shall distribute to each Participant which has paid its Commitment Percentage thereof, in Dollars United States dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) v Upon the request of any Participant, each respective Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) vi The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and and, except as provided in Section 2.14(c)(ii), not subject to any 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) A any lack of validity or enforceability of this Agreement or any of the Credit Documents;
other Lender Agreement; (ii) B the existence of any claim, setoff, defense or other right which the 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, the Documentation Agent, any Issuing BankLender, any BankParticipant, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
transactions (iii) including any draft, certificate or underlying transaction between the Borrower and the beneficiary named in any other document presented under any such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respectCredit);
(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 (Pc Connection Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender, other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 3.04, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and Acceptances created thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments or Percentages of the Participants Lenders pursuant to Section 12.042.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit Credit, Acceptances created thereunder and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new Percentages of the assigning assignor and assignee ParticipantLender or of all Lenders, as the case may be.
(b) In determining whether to pay or create an Acceptance under any Letter of Credit, the respective such Issuing Bank Lender shall not have any no obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank Lender under or in connection with any Letter of Credit 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 proceeding, shall not create for such Issuing Bank Lender any resulting liability to the Borrowers or any ParticipantLender.
(c) In the event that any Issuing Bank Lender makes any payment under any Letter of Credit issued by it or any Acceptance created thereunder and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of CreditCredit or an Acceptance created thereunder, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Lender in Dollars such Participant's Percentage of the amount of such payment (using the Dollar Equivalent thereof in the case of any such payment in respect of a Letter of Credit denominated in an Alternate Currency, determined on the date of such payment) on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Revolving Loans maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to any such Issuing Bank Lender its Percentage of any payment under any Letter of Credit or Acceptance shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank Lender its Percentage of any payment under with respect to any Letter of Credit or Acceptance created thereunder 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 Bank Lender such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of such Participanteach Participant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Percentage 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 payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective the relevant Issuing Bank Lender shall furnish deliver to such Participant copies of any Letter of Credit issued by it and such other documentation as may be reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit and Acceptances issued thereunder shall be irrevocable and not subject to any qualification or exception whatsoever (the respective Issuing Lender's only obligation being to confirm that any documents required to be delivered under such Letter of Credit appeared to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit) 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Borrowers or any of their 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 holder of an Acceptance, the Administrative Agent, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, any Acceptance, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between any 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 (Furniture Brands International Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank Revolving Lender (each such other Bank Revolving Lender, in such capacityits capacity under this Section 2.04, as "a “Participant"”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, ’s RL Percentage in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Facing Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.041.13, 1.15, 1.18 or 12.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the Participants therein 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such an Issuing Bank Lender any resulting liability to any ParticipantRevolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted 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 decision).
(c) In the event that any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such the respective Issuing Bank Lender, the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 2.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York timeLocal Time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the respective Issuing Lender in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 2.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) such Issuing Bank the Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such the Administrative Agent for the account of the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate (or, in the case of amounts owed in a Primary Alternate Currency, the Administrative Agent’s customary rate for interbank advances in the relevant Primary Alternate Currency) for the first three days and at the interest rate applicable to Revolving Loans maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to any the Administrative Agent for the account of an Issuing Bank its Lender such Participant’s RL 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 the Administrative Agent for the account of such Issuing Bank its Lender such Participant’s RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Issuing Lender any payments from any Participant the respective Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for and the account of Administrative Agent shall promptly pay to each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 2.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the respective Participants to make payments to any the Administrative Agent for the account of each Issuing Bank 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the Borrower any Revolving Borrower, any other Credit Party or any Subsidiary thereof 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 Documentation Agentsuch Issuing Lender, any Issuing Bank, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between any Revolving Borrower, any other Credit Party or any Subsidiary thereof and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any the 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
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or Percentages of the Participants Lenders pursuant to Section 12.042.13 or 14.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any Issuing Bank 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 Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. a.m. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s Percentage 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 Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate for the first three days and at the Eurodollar Rate for such interest periods as selected by the Administrative Agent, as in effect from time to time, plus the Applicable Margin as in effect from time to time for each day thereafter. The failure of any Participant to make available to any an Issuing Bank Lender its 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 Bank Lender its 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 Bank Lender such other Participant's ’s Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in its capacity under this Section 2.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank 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 jurisdiction in a final and non-appealable decision)) 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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.
Appears in 1 contract
Samples: Credit Agreement (Bway Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any Letter of Credit (or upon the Second Restatement Effective Date Each Fronting Lender irrevocably grants, and in the case of order to induce such Fronting Lender to issue its Letters of Credit existing on such date)hereunder, such Issuing Bank shall be deemed to have sold each Lender irrevocably accepts and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received hereby purchases from such Issuing BankFronting Lender on the terms and conditions hereinafter stated, without recourse or warrantyfor its own account and risk, an undivided interest and participation, equal to the extent of such ParticipantLender's Percentage, Proportion in such Letter of Credit of such Issuing Bank, Fronting Lender's obligations and rights under each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments of the Participants pursuant to Section 12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning and assignee Participant.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent it hereunder and the amount of each draft paid by such Fronting Lender thereunder. Each Lender unconditionally and irrevocably agrees with each Fronting Lender that, on or before the close of business of such Fronting Lender on each day on which a draft is paid under a Letter of Credit for which such Fronting Lender is not reimbursed in full by the Security Documents, and shall only be obligated to take any actions Borrower in accordance with the obligations terms of the Collateral Agentthis Agreement, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentenceincluding, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest andwithout limitation, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability to any Participant.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a3.11(j) (a "Participation Date"), such Issuing Bank shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally Lender will pay to the Administrative Agent for the account of such Issuing Bank Fronting Lender at the Agent's Branch of Account such Lender's Proportion of any such unpaid amount. Such Fronting Lender shall notify the Agent who shall notify each Lender of the occurrence of a Participation Date, and the amount of payable by it to the ParticipantAgent based on such Lender's Percentage of such unreimbursed payment in Dollars and in same day fundsLender's Proportion. If any Issuing Bank so notifies, prior Lender fails to 11:00 A.M. (New York time) on make any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage of the amount of such payment on or prior to the first Business Day after such Lender receives notice as provided above, then interest shall accrue on such Lender's obligation to make such payment during the period from such Business Day in same day funds. If and to the extent day such Participant shall not have so made its Percentage of the amount of Lender makes such payment available to such Issuing Bank(or, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankif earlier, 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 Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 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 reimburses such transferee may be actingFronting Lender as required pursuant to Section 3.11(j)), at the Administrative Agent, the Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether rate specified in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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 DefaultSection 5.6.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in its capacity under this Section 2.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Company 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Company or any Subsidiary of the Company 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
Letter of Credit Participations. (a) Immediately upon the issuance by any The Issuing Bank irrevocably agrees to grant and hereby grants to each L/C Lender, and, to induce the Issuing Bank to issue Letters of any Credit, each L/C Lender irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Bank, on the terms and conditions set forth below, for such L/C Lender’’s own account and risk an undivided interest equal to such L/C Lender’’s L/C Commitment Percentage in the Issuing Bank’’s obligations and rights under and in respect of each Letter of Credit (or upon issued by the Second Restatement Effective Date in the case of Letters of Credit existing on such date), such Issuing Bank shall be deemed to have sold and transferred to the amount of each Bank other than such draft paid by the Issuing Bank (each such other Bank in such capacity, as "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation, to thereunder. Each L/C Lender agrees with the extent of such Participant's Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments of the Participants pursuant to Section 12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning and assignee Participant.
(b) In determining whether to pay if a draft is paid under any Letter of Credit, the respective Issuing Bank shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by itthe Issuing Bank for which the Issuing Bank is not reimbursed in full by the Borrowers in accordance with the terms of this Agreement, such L/C Lender shall pay to the Issuing Bank upon demand at the Issuing Bank’’s address for notices specified herein an amount equal to such L/C Lender’’s L/C Commitment Percentage of the amount of such draft, or any part thereof, that is not so reimbursed, provided that (x) in lieu of making any demands under this Section 3.04(a), the respective Issuing Bank may withdraw funds from such L/C Lender’’s Lender Cash Collateral Account; or (y) so long as funds sufficient to pay such amount are in such L/C Lender’s Lender Cash Collateral Account and are available to the Issuing Bank without stay or delay, such L/C Lender may satisfy any demands made under this Section 3.04(a) by the Issuing Bank, by directing the Issuing Bank to withdraw funds from such L/C Lender’s Lender Cash Collateral Account, in each case, to satisfy such payment obligations in accordance with Section 45 of the Cash Collateral Agreement. The Issuing Bank shall give prompt notice of such withdrawal in accordance with the Cash Collateral Agreement. Each L/C Lender’’s obligation to pay such amount shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such L/C Lender may have against the Issuing Bank, the Borrowers or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Article IV, (iii) any adverse change in the condition (financial or otherwise) of the Borrowers or any other Loan Party, (iv) any breach of this Agreement or any other Loan Document by the Borrowers, any other Loan Party or any other Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that each L/C Lender shall only be obligated to make any such payment in Dollars (and not any foreign currency) in accordance with the provisions of Section 3.10 hereof.
(b) If any amount required to be paid by any L/C Lender to the Issuing Bank pursuant to Section 3.04(a) in respect of any unreimbursed portion of any payment made by the Issuing Bank under any Letter of Credit is paid to the Issuing Bank within three Business Days after the date such payment is due, such L/C Lender shall pay to the Issuing Bank on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to the Issuing Bank, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any L/C Lender pursuant to Section 3.04(a) is not made available to the Issuing Bank by such L/C Lender within three Business Days after the date such payment is due, the Issuing Bank shall be entitled to recover from such L/C Lender, on demand, the protections BaseEurodollar Rate plus 5.2511% per annum. A certificate of the Issuing Bank submitted to any L/C Lender with respect to any amounts owing under this Section shall be conclusive in the absence of manifest error, provided that (x) in lieu of making any demands under this Section 3.04(b), the Issuing Bank may withdraw funds from such L/C Lender’’s Lender Cash Collateral Account; or (y) so long as funds sufficient to pay such amount are in such L/C Lender’s Lender Cash Collateral Account and indemnities afforded are available to the Issuing Bank without stay or delay, such L/C Lender may satisfy any demands made under this Section 3.04(b) by the Issuing Bank, by directing the Issuing Bank to withdraw funds from such L/C Lender’s Lender Cash Collateral Agent hereunder and under Account, in each case, to satisfy such payment obligations in accordance with Section 45 of the Security Documents, and Cash Collateral Agreement. The Issuing Bank shall only be obligated to take any actions give prompt notice of such withdrawal in accordance with the obligations Cash Collateral Agreement.
(c) Whenever, at any time after the Issuing Bank has made payment under any Letter of Credit issued by the Collateral AgentIssuing Bank and has received from any L/C Lender its pro rata share of such payment in accordance with Section 3.04(a) or (b), provided the Issuing Bank receives any payment related to such Letter of Credit (whether directly from the applicable Borrower or otherwise, including proceeds of collateral applied thereto by the Issuing Bank), or any payment of interest on account thereof, the Issuing Bank will distribute to such L/C Lender its pro rata share thereof; provided, however, that in the event that any such payment received by the Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest andbe rescinded, in restored or returned by the event such Issuing Bank reasonably determines that: (i) property subject upon the bankruptcy, insolvency or reorganization of any Person or otherwise, such L/C Lender shall return to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for Bank the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle portion thereof previously distributed by the Issuing Bank to foreclose upon it, provided, further, that if such propertyL/C Lender (x) is an L/C Lender with respect to which an L/C Lender Insolvency Event has occurred and is continuing with respect to such L/C Lender or its Parent Company, or if such L/C Lender or its Parent Company has become the subject of a Bail-In Action, and (y) such L/C Lender has defaulted on its obligations to the Issuing Bank, then the Issuing Bank may foreclose upon apply any such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability to any Participant.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full proceeds first to such Issuing Bank pursuant to Section 2.05(a)defaulted obligations and after such defaulted obligations are paid in full, such Issuing Bank shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available remainder to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such paymentL/C Lender.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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: Letter of Credit and Reimbursement Agreement (Sears Holdings Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Revolving Lender, and each such Participant Revolving Lender (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, Letter of Credit Issuer,without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantLender's Adjusted Revolving Commitment Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although the Letter of Credit Fee shall be payable directly to the Agent for the account of the Lenders as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any Uponany change in the Revolving Commitments or Adjusted Revolving Commitment Percentages of the Participants Revolving Lenders pursuant to Section 12.0412.04(b) or upon a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.05 to reflect the new Adjusted Revolving Commitment Percentages of the assigning and assignee ParticipantLender or of all Revolving Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to strictly comply on their face with the requirements of such Letter of Credit. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank the Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Agent, and the Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer, the amount of the such Participant's Adjusted Revolving Commitment Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Agent its Adjusted Revolving Commitment Percentage of such unreimbursed amount for 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. If the Agent so notifies any Issuing Bank so notifies, Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer such Issuing Bank the Participant's Adjusted Revolving Commitment Percentage 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 Adjusted Revolving Commitment Percentage of the amount of such payment Unpaid Drawing available to such Issuing Bankthe Agent for the account of the Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe 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 such Issuing Bank the Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Agent for the account of the Letter of Credit Issuer its Adjusted Revolving Commitment Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank the Agent for the account of the Letter of Credit Issuer its Adjusted Revolving Commitment 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 Bank the Agent for the account of the Letter of Credit Issuer such other Participant's Adjusted Revolving Commitment Percentage of any such payment.
(d) Whenever any Issuing Bank the Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Agent has received for the account of the Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAgent shall promptly pay to each Participant which has paid its Adjusted Revolving Commitment Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's Adjusted Revolving Commitment Percentage of such payment the principal amount thereof and interest thereon accruing at the overnight Federal Funds Effective Rate after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Participant shall be required to make payments resulting from the Letter of Credit Issuer's gross negligence or willful misconduct) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the Credit other Loan Documents;
; (ii) the existence of any claim, setoffset-off, defense or other right which 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 Documentation AgentLetter of Credit Issuer, any Issuing Bank, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
transactions (iii) including any draft, certificate or underlying transaction between the Borrower and the beneficiary named in any other document presented under any such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respectCredit);
(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 (Peebles Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Lender, and each such Participant Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars the currency of the respective Unpaid Drawing and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York City time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars or such Issuing Bank the other currency, as applicable, such Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds Rate (or in the case of amounts owed in Euros, at the Overnight Euro Rate) 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars (or in Euros or Sterling in the case of payments to be made in Euros or Sterling pursuant to Section 3.04(c)) and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")Revolving Lender, and each such Participant Revolving Lender (each a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Revolving Lender’s Revolving Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Revolving Lenders as provided in Section 3.1(b) and the Participants shall have no right to receive any portion of any Fronting Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Commitments of the Participants Revolving Lenders pursuant to Section 12.0412.4(b), it is hereby agreed that, with respect to all then outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.4 to reflect the new Revolving Percentages of the assigning and assignee ParticipantRevolving Lender.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank the Letter of Credit Issuer under or in connection with any Letter of Credit Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.3(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer, the amount of the such Participant's ’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies any Issuing Bank so notifies, Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer such Issuing Bank the Participant's ’s Revolving Percentage 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 Revolving Percentage of the amount of such payment available to such Issuing Bankthe Administrative Agent for the account of the Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe 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 such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer its Revolving 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 Bank the Administrative Agent for the account of the Letter of Credit Issuer such other Participant's ’s Revolving Percentage of any such payment.
(d) Whenever any Issuing Bank the Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of the Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) aboveSection 2.4(c), such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to the such Participant's ’s Revolving Percentage of such payment the principal amount thereof and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which 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 Documentation AgentLetter of Credit Issuer, any Issuing BankLender, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 the 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
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Lender of any Letter of Credit (or upon Credit, the Second Restatement Effective Date in the case of Letters of Credit existing on such date), such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank Lender, other than such the Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under Section 2.20, as a "Participant"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's PercentageRatable Portion, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect theretothereto (excluding the Facing Fee), and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments of the Participants pursuant to Section 12.04Lenders, it is hereby agreed that, with respect to all any outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.20 to reflect the new Percentages Ratable Portions of the assigning and assignee ParticipantLenders.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Lender shall not have any no obligation relative to the 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 comply on their face with the requirements of such Letter of Credit. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such the Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank Lender any resulting liability to the Borrower or any ParticipantLender.
(c) In the event that any the Issuing Bank Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such the Issuing Bank Lender pursuant to Section 2.05(a2.21(a), such the Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's Percentage Ratable Portion of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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.notifies any
Appears in 1 contract
Samples: Revolving Credit Agreement (Felcor/Lax Holdings Lp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters an amendment to a Letter of Credit existing on such dateincreasing the amount or extending the expiration date thereof), such Issuing Bank the Letter of Credit Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank Revolving Credit Lender (each such other Bank Revolving Credit Lender, in such capacityits capacity under this Section 3.3(a), as "a “Letter of Credit Participant"”), and each such Letter of Credit Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bankthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participationparticipation (each, a “Letter of Credit Participation”), to the extent of such Letter of Credit Participant's ’s Revolving Credit Commitment Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request thereto (although Letter of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, Credit Fees will be paid directly to the Administrative Agent or for the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments ratable account of the Participants pursuant to Section 12.04, it is hereby agreed that, with respect to all outstanding Letters Letter of Credit Participants as provided in Section 4.1(c) and Unpaid Drawings, there the Letter of Credit Participants shall be an automatic adjustment have no right to receive any portion of any fees paid to the participations pursuant to this Section 2.04 to reflect Administrative Agent for the new Percentages account of the assigning and assignee ParticipantLetter of Credit Issuer in respect of each Letter of Credit issued hereunder).
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank Letter of Credit Issuer shall not have any no obligation relative to the Letter of Credit Participants other than to confirm to the Administrative Agent 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank the Letter of Credit Issuer 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 in a final non-appealable judgment of a court of competent jurisdiction, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In Whenever the event Administrative Agent receives a payment in respect of an unpaid reimbursement obligation for the account of the Letter of Credit Issuer from the Borrower, the Administrative Agent shall promptly pay to each Letter of Credit Participant that any Issuing Bank makes any payment under has paid its Revolving Credit Commitment Percentage of such reimbursement obligation, in Dollars and in immediately available funds, an amount equal to such Letter of Credit Participant’s share (based upon the proportionate aggregate amount originally funded or deposited by such Letter of Credit Participant to the aggregate amount funded or deposited by all Letter of Credit Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective Letter of Credit Participations; provided that the amount paid to any Letter of Credit and the Borrower Participant shall not have reimbursed exceed the amount funded or deposited by such amount in full Letter of Credit Participant.
(d) The obligations of the Letter of Credit Participants to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify each Participant purchase Letter of such failure, Credit Participations from the Letter of Credit Issuer and each Participant shall promptly and unconditionally pay make payments to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, 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, setoffset-off, defense or other right which 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 beneficiary or transferee may be acting), the Administrative Agent, the Documentation AgentLetter of Credit Issuer, any Issuing Bank, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein hereby or any unrelated transactionstransactions (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.; or
(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Credit Party or Restricted Subsidiary
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.042.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 3.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any Issuing Bank 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 Bank Lender pursuant to Section 2.05(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, on or prior to 11:00 A.M. 1:00 P.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage of the amount of such payment on such Business Day (or to the extent that the Administrative Agent so notifies such Participant after 1:00 P.M. (New York time) on such Business Day, on the immediately succeeding Business Day, in either case) in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank 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 jurisdiction in a final and non-appealable decision)) 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (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 Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Town Sports International Holdings Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank a Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (each, a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter Letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the RL Lenders as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees with respect to such Letters of Credit) and any security therefor therefore or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments of the Participants RL Lenders pursuant to Section 12.041.13 or 13.04(b) or as a result of the Restatement Effective Date, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.03 to reflect the new Percentages of the assigning and assignee ParticipantLender.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank no Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank any Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to the Borrower, any Participantother Credit Party, any Lender 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).
(c) In the event that any Issuing Bank Letter of Credit Issuer 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 Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's Percentage of such unreimbursed payment in U.S. Dollars and in same day funds. If the Administrative Agent so notifies any Issuing Bank so notifies, Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Letter of Credit Issuer such Issuing Bank the Participant's Percentage of the amount of such payment on such Business Day in same day fundsfunds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Participant shall make such payment on the immediately following Business Day). If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to such Issuing Bankthe Administrative Agent for the account of the respective Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds RateRate 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 any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer its Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer its applicable Percentage of any payment under any such 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 the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to the such Participant's Percentage of such payment the principal amount thereof and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon Each Letter of Credit Issuer shall, promptly after each issuance of, or amendment or modification to, a standby Letter of Credit issued by it, give the request Administrative Agent, each Participant and the Borrower written notice of any the issuance of, or amendment or modification to, such Letter of Credit, which, if so requested by a Participant, each respective Issuing Bank shall furnish to such Participant copies be accompanied by a copy of any the standby Letter of Credit or standby Letters of Credit issued by it and each such other documentation as may reasonably be requested by such Participantamendment or modification thereto.
(f) As between Each Letter of Credit Issuer (other than BTCo) shall deliver to the Borrower and Administrative Agent, promptly on the respective Issuing Bankfirst Business Day of each week, by facsimile transmission, the Borrower assumes all risks of daily aggregate Stated Amount available to be drawn under the acts and omissions of, or misuse of the outstanding trade Letters of Credit issued by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with Issuer for the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsprevious week.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the Borrower 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, the Documentation Agentany Letter of Credit Issuer, any Issuing BankLender, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between Holdings 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 the 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
Letter of Credit Participations. (a) Immediately upon the issuance by any the respective Issuing Bank of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank shall be deemed to have sold and transferred to (i) in the case of a Domestic Dollar Letter of Credit, each Bank RL Lender (other than such Issuing Bank Bank) and (ii) in the case of an Alternate Currency Letter of Credit, each Alternate Currency RL Lender (other than an Issuing Bank) with an Alternate Currency Revolving Loan Sub-Commitment relating to the respective Alternate Currency Revolving Loan Sub-Tranche under which such Alternate Currency Letter of Credit was issued (each such other Bank Lender with respect to any Letter of Credit, in such capacityits capacity under this Section 2.04, as "a “Participant"”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation, in a percentage equal to (x) in the extent case of a Domestic Dollar Letter of Credit, such Participant's ’s Domestic RL Dollar Percentage or (y) in the case of an Alternate Currency Letter of Credit, such Participant’s relevant Alternate Currency RL Percentage, in such Domestic Dollar Letter of Credit or Alternate Currency Letter of such Issuing BankCredit, each substitute letter of creditas the case may be, each drawing or payment made thereunder and the obligations of the Borrower respective Account Party under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request thereto (although Letter of the Administrative Agent or the Required Banks, such Issuing Bank Credit Fees shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, be paid directly to the Administrative Agent for the account of the RL Lenders or the Collateral Agent but relevant Alternate Currency RL Lenders as provided in Section 3.01(b) and the Participants shall have no right to receive any failure portion of any Facing Fees with respect to make any such transfer Letters of Credit); provided that, upon the occurrence of a Sharing Event, the participations described above shall not restrict be automatically adjusted so that each RL Lender shall have a participation in all then outstanding Letters of Credit (whether a Domestic Dollar Letter of Credit or impair an Alternate Currency Letter of Credit), and related obligations as described above, in a percentage equal to its RL Percentage (which adjustments shall occur concurrently with the rights held pursuant to this Agreement by any Bank adjustments described in such security interests and guarantiesSection 1.17). Upon any change in the Commitments Revolving Loan Commitments, Non-Alternate CurrencyDomestic Dollar Revolving Loan Sub-Commitments, Alternate Currency Revolving Loan Sub-Commitments, Domestic RL Dollar Percentages or relevant Alternate Currency RL Percentages of the Participants RL Lenders pursuant to Section 12.04this Agreement (or in the circumstances provided in the proviso to the immediately preceding sentence, the RL Percentages of the RL Lenders pursuant to this Agreement), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Domestic RL Dollar Percentages or relevant Alternate Currency RL Percentages or, in the circumstances described in the proviso to the immediately preceding sentence, the RL Percentages of the assigning and assignee Participantvarious RL Lenders.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank shall not have any no obligation relative to the Participants or any 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconductmisconduct (as finally determined by a court of competent jurisdiction), shall not create for such Issuing Bank any resulting liability to any ParticipantAccount Party, any other Credit Party, any Lender or any other Person.
(c) In the event that If any Issuing Bank makes any payment under any Letter of Credit and the Borrower respective Account Party shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account benefit of such Issuing Bank the amount of such Participant’s Domestic RL Dollar Percentage (in the Participant's case of a Domestic Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of such unreimbursed payment in Dollars (or, in the case of an Alternate Currency Letter of Credit, at any time prior to the occurrence of a Sharing Event, the Alternate Currency in which such Alternate Currency Letter of Credit is denominated) and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account benefit of such Issuing Bank Bank, in Dollars (or, in the case of an Alternate Currency Letter of Credit, at any time prior to the occurrence of a Sharing Event, the Alternate Currency in which such Alternate Currency Letter of Credit is denominated), such Participant's ’s Domestic RL Dollar Percentage (in the case of a Domestic Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of the amount of such payment on such Business Day in same day funds; provided, however, that no Participant shall be obligated to pay to the Administrative Agent for the benefit of such Issuing Bank its Domestic RL Dollar Percentage (in the case of a Domestic Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of such unreimbursed amount for any wrongful payment made by such Issuing Bank under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Bank (as finally determined by a court of competent jurisdiction). If and to the extent such Participant shall not have so made its Domestic RL Dollar Percentage (in the case of a Domestic Dollar Letter of Credit) or Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of the amount of such payment available to the Administrative Agent for the benefit of such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account benefit of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the benefit of such Issuing Bank at (x) in the case of Dollar Letters of Credit and, after the occurrence of a Sharing Event, other amounts owing in Dollars, the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Dollar Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (y) in the case of Non-Dollar Alternate Currency Letters of Credit denominated in a given Non-Dollar Alternate Currency at any time prior to the occurrence of a Sharing Event, the relevant Euro Rate (as determined on the basis provided in the proviso appearing in the definition of the relevant Euro Rate) or relevant Alternate Currency Non-LIBOR Rate, as applicable, for the first three days and the interest rate applicable to Non-Dollar Alternate Currency Revolving Loans denominated in such Non-Dollar Alternate Currency for each day thereafter). The failure of any Participant to make available to any such Issuing Bank its Domestic RL Dollar Percentage (in the case of a Domestic Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Domestic RL Dollar Percentage (in the case of a Domestic Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of any unreimbursed payment under any with respect to a 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 the Administrative Agent for the benefit of such Issuing Bank such other Participant's ’s Domestic RL Dollar Percentage or relevant Alternate Currency RL Percentage (or, after the occurrence of a Sharing Event, its RL Percentage), as applicable, of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account benefit of such Participanteach Participant which has paid its Domestic RL Dollar Percentage (in the case of a Domestic Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) thereof, in Dollars (or, in the case of xxx Non-Dollar Alternate Currency Letter of Credit, at any time prior to the occurrence of a Sharing Event, the Non-Dollar Alternate Currency in which such Non-Dollar Alternate Currency Letter of Credit is denominated) and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage 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. The payment required to be made by the respective Issuing Bank to the Administrative Agent pursuant to the preceding sentence shall be made on the day the respective payment of a reimbursement obligationis received by such Issuing Bank (if payment was actually received by such Issuing Bank prior to 12:00 Noon (local time in the city in which such payments are to be made)).
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any the Administrative Agent for the benefit of each Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever (except as otherwise provided in the proviso to the second sentence of Section 2.04(c)) 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower any Credit Party or any of its Subsidiaries or Affiliates 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 Documentation any Agent, any Issuing Bank, any BankParticipant, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between any Credit Party or any Subsidiary or Affiliate of any Credit Party 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 guaranty for the performance or observance of any of the terms of any of the Credit Documents; or
or (v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (in its capacity under this Section 2.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's ’s RL Percentage, in such Letter of Credit of such Issuing Bank, each substitute letter of creditCredit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or RL Percentages of the Participants Lenders pursuant to Section 12.041.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new RL Percentages of the assigning assignor and assignee ParticipantLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective no Issuing Bank Lender shall not have any obligation relative to the 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such an Issuing Bank Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, issued by it shall not create for such Issuing Bank Lender any resulting liability to the Borrower, any Participantother Credit Party, any Lender or any other Person unless such action is taken or omitted 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 decision).
(c) In the event that any an Issuing Bank 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 Bank Lender pursuant to Section 2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Lender the amount of the such Participant's ’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of respective Issuing Lender in Dollars such Issuing Bank the Participant's ’s RL Percentage 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 RL Percentage of the amount of such payment available to such the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, 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 Bank Lender at the overnight Federal Funds RateRate 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 any an Issuing Bank Lender its RL 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 Bank Lender its RL 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 Bank Lender such other Participant's ’s RL Percentage of any such payment.
(d) Whenever any an Issuing Bank Lender receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the respective Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent for the account of each such ParticipantParticipant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such payment reimbursement obligation and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank 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) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any each Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not subject to any 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the 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, the Documentation Agentany Participant, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower or any Subsidiary of 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.
Appears in 1 contract
Samples: Credit Agreement (RCN Corp /De/)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank a Letter of Credit Issuer of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters Credit, such Letter of Credit existing on such date), such Issuing Bank Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank (each such other Bank in such capacity, as "Participant")RL Lender, and each such Participant RL Lender (each, a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's Adjusted RL Percentage, in such Letter of Credit of such Issuing BankCredit, each substitute letter Letter of creditCredit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the RL Lenders as provided in Section 3.01(c) and the Participants shall have no right to receive any portion of any Facing Fees with respect to such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Revolving Loan Commitments or the Adjusted RL Percentages of the Participants RL Lenders pursuant to Section 12.041.13 or 13.04(b) or as a result of a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.03 to reflect the new Adjusted RL Percentages of the assigning and assignee ParticipantLender or of all RL Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank no Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank any Letter of Credit Issuer under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconductmisconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision), shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank Letter of Credit Issuer 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 Bank the Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer, the amount of the such Participant's Adjusted RL Percentage of such unreimbursed payment in U.S. Dollars and in same day funds. If the Administrative Agent so notifies any Issuing Bank so notifies, Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Letter of Credit Issuer such Issuing Bank the Participant's Adjusted RL Percentage of the amount of such payment on such Business Day in same day fundsfunds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Participant shall make such payment on the immediately following Business Day). If and to the extent such Participant shall not have so made its Adjusted RL Percentage of the amount of such payment available to such Issuing Bankthe Administrative Agent for the account of the respective Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter 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 such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer its Adjusted RL Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer its applicable Adjusted RL Percentage of any payment under any such 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 the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer such other Participant's Adjusted RL Percentage of any such payment.
(d) Whenever any Issuing Bank Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of such ParticipantAdministrative Agent shall promptly pay to each Participant which has paid its Adjusted RL Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to the such Participant's Adjusted RL Percentage of such payment the principal amount thereof and interest thereon accruing after the purchase of a reimbursement obligationthe respective participations.
(e) Upon Each Letter of Credit Issuer shall, promptly after each issuance of, or amendment or modification to, a Standby Letter of Credit issued by it, give the request Administrative Agent and the Borrower written notice of any Participantthe issuance of, each respective Issuing Bank or amendment or modification to, such Standby Letter of Credit, which notice shall furnish to such Participant copies be accompanied by a copy of any the Standby Letter of Credit or Standby Letters of Credit issued by it and each such other documentation amendment or modification thereto. Promptly upon receipt of such notice, the Administrative Agent shall notify each Participant, in writing, of such issuance, amendment or modification and if any Participant shall so request, the Administrative Agent shall furnish said Participant with a copy of such Standby Letter of Credit, such amendment or such modification, as the case may reasonably be requested by such Participantbe.
(f) As between Each Letter of Credit Issuer (other than DBTCA) shall deliver to the Borrower and Administrative Agent, promptly on the respective Issuing Bankfirst Business Day of each week, by facsimile transmission, the Borrower assumes all risks of aggregate daily Stated Amount available to be drawn under the acts and omissions of, or misuse of the outstanding Trade Letters of Credit issued by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with Issuer for the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsprevious week.
(g) The obligations of the Participants to make payments to any Issuing Bank the Administrative Agent for the account of the respective Letter of Credit Issuer 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 other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the 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, the Documentation any Agent, any Issuing BankLetter of Credit Issuer, any BankLender, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between the Borrower 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 the 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
Letter of Credit Participations. (a) Immediately upon the issuance by any the respective Issuing Bank of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank shall be deemed to have sold and transferred to (i) in the case of a Dollar Letter of Credit, each Bank RL Lender (other than such Issuing Bank Bank) and (ii) in the case of an Alternate Currency Letter of Credit, each Alternate Currency RL Lender (other than an Issuing Bank) with an Alternate Currency Revolving Loan Sub-Commitment relating to the respective Alternate Currency Revolving Loan Sub-Tranche under which such Alternate Currency Letter of Credit was issued (each such other Bank Lender with respect to any Letter of Credit, in such capacityits capacity under this Section 2.04, as "a “Participant"”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation, in a percentage equal to (x) in the extent case of a Dollar Letter of Credit, such Participant's ’s Dollar Percentage or (y) in the case of an Alternate Currency Letter of Credit, such Participant’s relevant Alternate Currency RL Percentage, in such Dollar Letter of Credit or Alternate Currency Letter of such Issuing BankCredit, each substitute letter of creditas the case may be, each drawing or payment made thereunder and the obligations of the Borrower respective Account Party under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request thereto (although Letter of the Administrative Agent or the Required Banks, such Issuing Bank Credit Fees shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, be paid directly to the Administrative Agent for the account of the RL Lenders or the Collateral Agent but relevant Alternate Currency RL Lenders as provided in Section 3.01(b) and the Participants shall have no right to receive any failure portion of any Facing Fees with respect to make any such transfer Letters of Credit); provided that, upon the occurrence of a Sharing Event, the participations described above shall not restrict be automatically adjusted so that each RL Lender shall have a participation in all then outstanding Letters of Credit (whether a Dollar Letter of Credit or impair an Alternate Currency Letter of Credit), and related obligations as described above, in a percentage equal to its RL Percentage (which adjustments shall occur concurrently with the rights held pursuant to this Agreement by any Bank adjustments described in such security interests and guarantiesSection 1.17). Upon any change in the Commitments Revolving Loan Commitments, Non-Alternate Currency Revolving Loan Sub-Commitments, Alternate Currency Revolving Loan Sub-Commitments, Dollar Percentages or relevant Alternate Currency RL Percentages of the Participants RL Lenders pursuant to Section 12.04this Agreement (or in the circumstances provided in the proviso to the immediately preceding sentence, the RL Percentages of the RL Lenders pursuant to this Agreement), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Dollar Percentages or relevant Alternate Currency RL Percentages or, in the circumstances described in the proviso to the immediately preceding sentence, the RL Percentages of the assigning and assignee Participantvarious RL Lenders.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank shall not have any no obligation relative to the Participants or any 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such any Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconductmisconduct (as finally determined by a court of competent jurisdiction), shall not create for such Issuing Bank any resulting liability to any ParticipantAccount Party, any other Credit Party, any Lender or any other Person.
(c) In the event that If any Issuing Bank makes any payment under any Letter of Credit and the Borrower respective Account Party shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account benefit of such Issuing Bank the amount of such Participant’s Dollar Percentage (in the Participant's case of a Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of such unreimbursed payment in Dollars (or, in the case of an Alternate Currency Letter of Credit, at any time prior to the occurrence of a Sharing Event, the Alternate Currency in which such Alternate Currency Letter of Credit is denominated) and in same day funds. If any Issuing Bank the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account benefit of such Issuing Bank Bank, in Dollars (or, in the case of an Alternate Currency Letter of Credit, at any time prior to the occurrence of a Sharing Event, the Alternate Currency in which such Alternate Currency Letter of Credit is denominated), such Participant's ’s Dollar Percentage (in the case of a Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of the amount of such payment on such Business Day in same day funds; provided, however, that no Participant shall be obligated to pay to the Administrative Agent for the benefit of such Issuing Bank its Dollar Percentage (in the case of a Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of such unreimbursed amount for any wrongful payment made by such Issuing Bank under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Bank (as finally determined by a court of competent jurisdiction). If and to the extent such Participant shall not have so made its Dollar Percentage (in the case of a Dollar Letter of Credit) or Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of the amount of such payment available to the Administrative Agent for the benefit of such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account benefit of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the benefit of such Issuing Bank at (x) in the case of Dollar Letters of Credit and, after the occurrence of a Sharing Event, other amounts owing in Dollars, the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Dollar Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (y) in the case of Alternate Currency Letters of Credit denominated in a given Alternate Currency at any time prior to the occurrence of a Sharing Event, the relevant Euro Rate (as determined on the basis provided in the proviso appearing in the definition of the relevant Euro Rate) for the first three days and the interest rate applicable to Alternate Currency Revolving Loans denominated in such Alternate Currency for each day thereafter). The failure of any Participant to make available to any such Issuing Bank its Dollar Percentage (in the case of a Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Dollar Percentage (in the case of a Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) of any unreimbursed payment under any with respect to a 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 the Administrative Agent for the benefit of such Issuing Bank such other Participant's ’s Dollar Percentage or relevant Alternate Currency RL Percentage (or, after the occurrence of a Sharing Event, its RL Percentage), as applicable, of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account benefit of such Participanteach Participant which has paid its Dollar Percentage (in the case of a Dollar Letter of Credit) or relevant Alternate Currency RL Percentage (in the case of an Alternate Currency Letter of Credit) (or, after the occurrence of a Sharing Event, its RL Percentage) thereof, in Dollars (or, in the case of an Alternate Currency Letter of Credit, at any time prior to the occurrence of a Sharing Event, the Alternate Currency in which such Alternate Currency Letter of Credit is denominated) and in same day funds, an amount equal to such Participant’s share (based upon the Participant's Percentage 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. The payment required to be made by the respective Issuing Bank to the Administrative Agent pursuant to the preceding sentence shall be made on the day the respective payment of a reimbursement obligationis received by such Issuing Bank (if payment was actually received by such Issuing Bank prior to 12:00 Noon (local time in the city in which such payments are to be made)).
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any the Administrative Agent for the benefit of each Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever (except as otherwise provided in the proviso to the second sentence of Section 2.04(c)) 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 other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower any Credit Party or any of its Subsidiaries or Affiliates 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 Documentation any Agent, any Issuing Bank, any BankParticipant, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between any Credit Party or any Subsidiary or Affiliate of any Credit Party 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 guaranty 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 (Starwood Hotel & Resorts Worldwide Inc)
Letter of Credit Participations. (ai) Immediately upon the issuance by any Issuing Bank Facing Agent of any Letter of Credit (or upon the Second Restatement Effective Date in the case of Letters of Credit existing on such date)Credit, such Issuing Bank Facing Agent shall be deemed to have sold and transferred to each Bank Multicurrency Revolving Lender, other than such Issuing Bank Facing Agent (each such other Bank Lender, in such capacityits capacity under this Section 2.10(e), as a "LC Participant"), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankFacing Agent, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantMulticurrency Revolving Lender's PercentageMulticurrency Revolver Pro Rata Share, in such Letter of Credit of such Issuing BankCredit, each substitute letter Letter of creditCredit, each drawing Drawing made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect theretothereto (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 the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Multicurrency Revolving Commitments of the Participants pursuant to Section 12.04Multicurrency Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating to Letters of Credit, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.10(e) to reflect the new Percentages Multicurrency Revolver Pro Rata Share of the assigning assignor and assignee ParticipantLender or of all Lenders with Multicurrency Revolving Commitments, as the case may be.
(bii) In determining whether to pay under any Letter of Credit, the respective Issuing Bank such Facing Agent shall not have any 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank 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 misconductmisconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Issuing Bank Facing Agent any resulting liability to any Participant.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from any Participant pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to any 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 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 Documentation Agent, any Issuing Bank, any Bank, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions;
(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 DefaultLender.
Appears in 1 contract
Samples: Credit Agreement (Ball Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit (or upon and on the Second Restatement Effective Closing Date in the case respect of Existing Letters of Credit existing on such dateCredit), such Issuing Bank the Letter of Credit Issuer shall be deemed to have sold and transferred to each Bank other than such Issuing Bank Lender (each such other Bank Lender, in such capacityits capacity under this Section 3.3, as "together with each Revolving Credit-1 Lender under Section 3.1(e), an “L/C Participant"”), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bankthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participationparticipation (each an “L/C Participation”), to the extent of such L/C Participant's ’s Revolving Credit Commitment Percentage, in such each Letter of Credit of such Issuing BankCredit, each substitute letter of credittherefor, each drawing made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the Commitments of the Participants pursuant to Section 12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new Percentages of the assigning and assignee Participant.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank relevant Letter of Credit Issuer shall not have any no obligation relative to the L/C Participants other than to confirm that (i) any documents required to be delivered under such Letter of Credit appear to have been delivered delivered, (ii) the Letter of Credit Issuer has examined the documents with reasonable care and that they (iii) the documents appear to comply on their face with the requirements of such Letter of Credit. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank the relevant Letter of Credit Issuer 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, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower Borrowers shall not have reimbursed repaid such amount in full to such Issuing Bank the respective Letter of Credit Issuer pursuant to Section 2.05(a3.4(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent and each L/C Participant of such failure, and each such L/C Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer, the amount of the such L/C Participant's ’s Revolving Credit Commitment Percentage of such unreimbursed payment in Dollars and in same day immediately available funds. If any Issuing Bank so notifies; provided, prior however, that no L/C Participant shall be obligated to 11:00 A.M. (New York time) on any Business Day, such Participant required pay to fund a payment under a the Administrative Agent for the account of the Letter of Credit, Credit Issuer its Revolving Credit Commitment Percentage of such unreimbursed amount arising from any wrongful payment made by the Letter of Credit Issuer under any such 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. Each L/C Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer such Issuing Bank the L/C Participant's ’s Revolving Credit Commitment Percentage of the amount of such payment no later than 12:00 Noon (New York City time) on such the first Business Day after the date notified by the Letter of Credit Issuer in same day 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 such Issuing Bankthe Administrative Agent for the account of the Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe Letter of Credit Issuer, forthwith on demand demand, such amount, together with interest thereon, thereon for each day from such date until the date such amount is paid to such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer at a rate per annum equal to the overnight Federal Funds RateOvernight Rate from time to time then in effect, plus any administrative, processing or similar fees customarily charged by the Letter of Credit Issuer in connection with the foregoing. The failure of any L/C Participant to make available to any Issuing Bank the Administrative Agent 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 such Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under 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 such Issuing Bank the Administrative Agent such other L/C Participant's ’s Revolving Credit Commitment Percentage of any such payment.
(d) Whenever any Issuing Bank the Letter of Credit Issuer receives a payment in respect of a an unpaid reimbursement obligation as to which it the Administrative Agent has received for the account of the Letter of Credit Issuer any payments from any Participant the L/C Participants pursuant to clause (c) above, such Issuing Bank 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 so paid in respect of such reimbursement obligation and interest thereon accruing after the purchase of the respective L/C Participations at the Overnight Rate.
(e) The obligations of the L/C Participants to make payments to the Administrative Agent for the account of such Participant, in Dollars and in same day funds, an amount equal to the Participant's Percentage of such payment of a reimbursement obligation.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants to make payments to any Issuing Bank Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, 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, setoffset-off, defense or other right which the that a 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 Documentation AgentLetter of Credit Issuer, any Issuing Bank, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between a 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, that, no L/C Participant shall be obligated to pay to the Administrative Agent for the account of the Letter of Credit Issuer its 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.
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Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any Letter of Credit (or upon under a Facility, the Second Restatement Effective Date in the case of Letters Letter of Credit existing on such date), such Issuing Bank Issuer issuing same shall be deemed to have sold and transferred to each Bank other than Lender under such Issuing Bank (each such other Bank in such capacity, as "Participant")Facility, and each such Participant Lender (each, a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant's PercentagePercentage for such Facility, in such Letter of Credit of such Issuing BankCredit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Borrower under this Agreement with respect thereto, thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Lenders as provided in Section 3.01(c) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon the request of the Administrative Agent or the Required Banks, such Issuing Bank shall take such actions in order to transfer such guaranties or security interests, and any documents and instruments relating thereto, to the Administrative Agent or the Collateral Agent but any failure to make such transfer shall not restrict or impair the rights held pursuant to this Agreement by any Bank in such security interests and guaranties. Upon any change in the USF Commitments of or MCF Commitments, as the Participants case may be, pursuant to Section 12.041.13 and/or 12.04(b), it is hereby agreed that, with respect to all outstanding out standing Letters of Credit and Unpaid DrawingsDrawings affected thereby, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 2.05 to reflect the new Percentages of the assigning and assignee ParticipantLender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Bank issued by it, a Letter of Credit Issuer shall not have any obligation relative to the Participants other than to confirm determine 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. In taking any actions with respect to any security interest or guaranty relating to any Letter of Credit issued by it, the respective Issuing Bank shall be entitled to the protections and indemnities afforded the Collateral Agent hereunder and under the Security Documents, and shall only be obligated to take any actions in accordance with the obligations of the Collateral Agent, provided that the such Issuing Bank shall only foreclose on such security interest and enforce such guaranty if instructed to do so by the Administrative Agent or the Required Banks. Notwithstanding the proviso contained in the immediately preceding sentence, nothing in such proviso shall restrict or impair any Issuing Bank's right to take such actions as such Issuing Bank may reasonably determine to be required to preserve and protect property subject to any such security interest and, in the event such Issuing Bank reasonably determines that: (i) property subject to any such security interest is perishable or threatens to speedily and materially decline in value and (ii) there then exists an event which, in the reasonable determination of the Issuing Bank, but for the failure of the Administrative Agent or the Required Banks to issue such instruction, would entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank may foreclose upon such property notwithstanding the failure of the Administrative Agent or the Required Banks to issue such instruction, provided that nothing in this sentence shall impose any duty on the Issuing Bank to take the foregoing actions. Any action taken or omitted to be taken by such Issuing Bank a Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability to any Participantliability.
(c) In the event that any Issuing Bank a Letter of Credit Issuer makes any payment under any Letter of Credit and the respective Borrower shall not have reimbursed such amount in full to such Issuing Bank Letter of Credit Issuer pursuant to Section 2.05(a2.04(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant under the respective Facility of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of the Participant's Percentage of such unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so notifies, prior to 11:00 A.M. (New York time) on any Business Day, such Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of such Issuing Bank the Participant's Percentage 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 Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to any Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its 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 Bank such other Participant's Percentage of any such payment.shall
(d) Whenever any Issuing Bank a Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from any Participant the respective Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent for and the account of Administrative Agent shall promptly pay to each such ParticipantParticipant which has paid its Percentage thereof, in Dollars the applicable currency and in same day funds, an amount equal to the such Participant's Percentage of the principal amount of such payment and interest thereon accruing at the overnight Federal Funds Effective Rate after the purchase of a reimbursement obligationthe respective participations.
(e) Upon the request of any Participant, each respective Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) As between the Borrower and the respective Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by the respective beneficiaries of such Letters of Credit. Further, and not in limitation of the foregoing, the respective Issuing Bank shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of (A) any documents submitted by any party in connection with the application for and issuance of such Letters of Credit, or (B) any document submitted by any party in connection with any drawing under any such Letter of Credit which purports to comply with the requirements of such Letter of Credit, even if (in the case of (A) or (B)) such document should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing of any such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(g) The obligations of the Participants hereunder to make payments to any Issuing Bank the Administrative Agent for the account of the Letter of Credit Issuers with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Participant shall be required to make payments resulting from a Letter of Credit Issuer's gross negligence or willful misconduct, as determined by a court of competent jurisdiction) 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:in
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the Borrower WLI 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, the Documentation any Agent, any Issuing BankLetter of Credit Issuer, any Bank, any Participant Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactionstransactions (including any underlying transaction between a Designated Party or any Subsidiary and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any the 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.
(f) To the extent a Letter of Credit Issuer is not indemnified by a Borrower as provided above, each Participant will reimburse and indemnify such Letter of Credit Issuer, in proportion to its aggregate Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such Letter of Credit Issuer in performing its respective duties in any way relating to or arising out of its issuance of Letters of Credit; PROVIDED that no Participant shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from a Letter of Credit Issuer's gross negligence or willful misconduct as determined by a court of competent jurisdiction.
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