Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be. (b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such 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 respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment. (d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations. (e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant. (f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 2 contracts
Samples: Credit Agreement (Lee Enterprises, Inc), Credit Agreement (Lee Enterprises Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL U.S. Lender, and each such RL U.S. 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower U.S. Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the U.S. Lenders pursuant to Section 2.13, 2.15, 4.02(b) 2.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other U.S. 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 be genuine and correct and to have been signed, sent or made by a proper Person and substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the any U.S. Borrower, any other Credit Party, any U.S. Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or negligence, willful misconduct or bad faith on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). The Issuing Lender may employ agents and attorneys-in-fact in connection with any matter relating to Letters of Credit and shall not be liable for the negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.
(c) The U.S. Credit Parties assume all risks of the acts, omissions or misuses of any Letter of Credit by the beneficiary. In connection with issuance of any Letter of Credit, none of Administrative Agent, Issuing Lender or any Lender shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any related documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any related documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any related documents or of any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in a Letter of Credit or the related documents; any deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract between a shipper or vendor and a Credit Party (or an Affiliate thereof); errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical terms; the misapplication by a beneficiary of any Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the control of the Issuing Lender, the Administrative Agent or any Lender, including any act or omission of a Governmental Authority. The rights and remedies of the Issuing Lender under the Credit Documents shall be cumulative. The Issuing Lender shall be fully subrogated to the rights and remedies of each beneficiary whose claims against the Credit Parties are discharged with proceeds of any Letter of Credit.
(d) In the event that an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower U.S. Borrowers shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in U.S. Dollars and in same day immediately available funds. If the Administrative Agent so notifies, prior to 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 U.S. Dollars such Participant’s RL Percentage of the amount of such payment on such Business Day in same day 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 the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to U.S. Borrower Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment.
(de) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(ef) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(fg) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower Holdings or any Subsidiary of the Borrower 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 2 contracts
Samples: Abl Credit Agreement (Affinia Group Holdings Inc.), Abl Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender Bank of any Letter of Credit, such the Issuing Lender Bank shall be deemed to have sold and transferred to each RL LenderBank with a Revolving Loan Commitment, and other than the Issuing Bank (each such RL Lender (Bank, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing LenderBank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders Banks pursuant to Section 2.13, 2.15, 4.02(b) 1.13 or 13.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee LenderBank, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender Bank shall not have any an obligation relative to the other Lenders 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. Any action taken or omitted to be taken by an the Issuing Lender Bank under or in connection with any Letter of Credit issued if taken or omitted in the absence of gross negligence or willful misconduct (as finally determined by it a court of competent jurisdiction), shall not create for such the Issuing Lender Bank any resulting liability to the Borrower, any other Credit Party, any Lender Bank 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)Person.
(c) In the event that an the Issuing Lender Bank 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 Lender Bank pursuant to Section 3.05(a2.05(a), such the Issuing Lender 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 such the Issuing Lender Bank the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender Bank in Dollars 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 respective the Issuing LenderBank, such Participant agrees to pay to such the Issuing LenderBank, 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 Lender Bank at the overnight Federal Funds 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 an the Issuing Lender Bank 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 the Issuing Lender 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 the Issuing Lender Bank such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender Bank shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each the Issuing Lender Bank shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing Lender 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 2 contracts
Samples: Credit Agreement (Atc Group Services Inc /De/), Credit Agreement (Power Ten)
Letter of Credit Participations. (a) Immediately upon the issuance by an The Issuing Lender of any Letter of Creditirrevocably agrees to grant and hereby grants to each Lender, such and, to induce the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter issue Letters of Credit, each drawing or payment made thereunder Lender irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender, on the terms and conditions set forth below, for such Lender’s own account and risk an undivided interest equal to such Lender’s Commitment Percentage in the Issuing Lender’s obligations and rights under and in respect of each Letter of Credit and the obligations amount of each draft paid by the Issuing Lender thereunder. Each Lender 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 Borrowers in accordance with the terms of this Agreement, such Lender shall pay to the Issuing Lender upon demand at the Issuing Lender’s address for notices specified herein an amount equal to such Lender’s Commitment Percentage of the Borrower under this Agreement with respect theretoamount of such draft, or any part thereof, that is not so reimbursed. Each Lender’s obligation to pay such amount shall be absolute and unconditional and shall not be affected by any security therefor circumstance, including (i) any set-off, counterclaim, recoupment, defense or guaranty pertaining thereto. Upon other right that such Lender may have against the Issuing Lender, 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 Revolving Loan Commitments condition (financial or RL Percentages otherwise) of the Lenders pursuant 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 Section 2.13, 2.15, 4.02(b) or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages any of the assignor foregoing; provided that each Lender shall only be obligated to make any such payment in Dollars (and assignee Lender, as not any foreign currency) in accordance with the case may beprovisions of Section 3.10 hereof.
(b) In determining whether If any amount required to pay be paid by any Lender to the Issuing Lender pursuant to Section 3.04(a) in respect of any unreimbursed portion of any payment made by the Issuing Lender under any Letter of CreditCredit is paid to the Issuing Lender within three Business Days after the date such payment is due, no such Lender shall pay to the Issuing Lender 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 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. If any such amount required to be paid by any Lender pursuant to Section 3.04(a) is not made available to the Issuing Lender by such Lender within three Business Days after the date such payment is due, the Issuing Lender shall have any obligation relative be entitled to recover from such Lender, on demand, such amount with interest thereon calculated from such due date at the other Lenders other than rate per annum set forth in Section 2.08(a)(i) or 2.08(b)(i), for the applicable Lenders, applicable to confirm that any documents required to be delivered under such Letter Base Rate Advances. A certificate of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability submitted to the Borrower, any other Credit Party, any Lender or with respect to any other Person unless such action is taken or omitted to amounts owing under this Section shall be taken with gross negligence or willful misconduct on conclusive in the part absence of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)manifest error.
(c) In Whenever, at any time after the event that an Issuing Lender makes any has made payment under any Letter of Credit issued by it and has received from any Lender its pro rata share of such payment in accordance with Section 3.04(a), the Borrower shall not have reimbursed such amount in full Issuing Lender 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 Lender), or any payment of interest on account thereof, the Issuing Lender pursuant will distribute to such Lender its pro rata share thereof (appropriately adjusted to reflect whether such payment is owed to a Non-Extending Lender or an Extending Lender and whether the corresponding interest rate owed to such Lender is calculated in accordance with Section 3.05(a2.08(a) or 2.08(b)); provided, however, that in the event that any such payment received by the Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant be required to fund a payment under a Letter of Credit, such Participant shall make available to be returned by the respective Issuing Lender in Dollars such 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 respective Issuing Lender, such Participant agrees Lender shall return to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for portion thereof previously distributed by the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such paymentit.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 2 contracts
Samples: Credit Agreement (Sears Holdings Corp), Credit Agreement (Sears Holdings Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such 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 respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 2 contracts
Samples: First Lien Credit Agreement (Lee Enterprises, Inc), Exit Credit Agreement (Lee Enterprises, Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 4.02(b) 2.16, 2.17 or 13.04(b13.04(c), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 to be taken with gross negligence negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that an any Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing 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 at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) 11:00 a.m. on any Business Day, 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 the respective Issuing Lender in Dollars such 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 the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender the Administrative Agent shall furnish to such Participant copies of any standby Letter of Credit issued by it any Issuing Lender and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (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 2 contracts
Samples: Credit Agreement (Dynegy Inc.), Credit Agreement (Dynegy Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by an The Issuing Lender of any Letter of Creditirrevocably agrees to grant and hereby grants to each Lender, such and, to induce the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter issue Letters of Credit, each drawing or payment made thereunder Lender irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender, on the terms and conditions set forth below, for such Lender's own account and risk an undivided interest equal to such Lender's Commitment Percentage in the Issuing Lender's obligations and rights under and in respect of each Letter of Credit and the obligations amount of each draft paid by the Issuing Lender thereunder. Each Lender 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 Borrowers in accordance with the terms of this Agreement, such Lender shall pay to the Issuing Lender upon demand at the Issuing Lender's address for notices specified herein an amount equal to such Lender's Commitment Percentage of the Borrower under this Agreement with respect theretoamount of such draft, or any part thereof, that is not so reimbursed. Each Lender's obligation to pay such amount shall be absolute and unconditional and shall not be affected by any security therefor circumstance, including (i) any set-off, counterclaim, recoupment, defense or guaranty pertaining thereto. Upon other right that such Lender may have against the Issuing Lender, 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 Revolving Loan Commitments condition (financial or RL Percentages otherwise) of the Lenders pursuant Borrowers, (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 Section 2.13, 2.15, 4.02(b) or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages any of the assignor and assignee Lender, as the case may beforegoing.
(b) In determining whether If any amount required to pay be paid by any Lender to the Issuing Lender pursuant to Section 3.04(a) in respect of any unreimbursed portion of any payment made by the Issuing Lender under any Letter of CreditCredit is paid to the Issuing Lender within three Business Days after the date such payment is due, no such Lender shall pay to the Issuing Lender 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 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. If any such amount required to be paid by any Lender pursuant to Section 3.04(a) is not made available to the Issuing Lender by such Lender within three Business Days after the date such payment is due, the Issuing Lender shall have any obligation relative be entitled to recover from such Lender, on demand, such amount with interest thereon calculated from such due date at the other Lenders other than rate per annum applicable to confirm that any documents required to be delivered under such Letter Base Rate Advances. A certificate of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability submitted to the Borrower, any other Credit Party, any Lender or with respect to any other Person unless such action is taken or omitted to amounts owing under this Section shall be taken with gross negligence or willful misconduct on conclusive in the part absence of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)manifest error.
(c) In Whenever, at any time after the event that an Issuing Lender makes any has made payment under any Letter of Credit issued by it and has received from any Lender its pro rata share of such payment in accordance with Section 3.04(a), the Borrower shall not have reimbursed such amount in full Issuing Lender 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 Lender), or any payment of interest on account thereof, the Issuing Lender pursuant will distribute to Section 3.05(a)such Lender its pro rata share thereof; provided, however, that in the event that any such payment received by the Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant be required to fund a payment under a Letter of Credit, such Participant shall make available to be returned by the respective Issuing Lender in Dollars such 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 respective Issuing Lender, such Participant agrees Lender shall return to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for portion thereof previously distributed by the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such paymentit.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 2 contracts
Samples: Credit Agreement (Sears Roebuck Acceptance Corp), Credit Agreement (Kmart Holding Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender Bank of any Letter of Credit, such the Issuing Lender Bank shall be deemed to have sold and transferred to each RL Lender, and Lender (other than the Issuing Bank) (each such RL Lender (with respect to any Letter of Credit, in its capacity under this Section 3.04, a “Participant”) ), and each Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing LenderBank, without recourse or warranty, an undivided interest and participation, in a percentage equal to the extent of such Participant’s RL Dollar Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the U.S. Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining theretothereto (although Letter of Credit Fees shall be paid directly to the Administrative Agent for the ratable account of the RL Lenders based on their Dollar Percentages as provided in Section 4.01(c) and the Participants shall have no right to receive any portion of any Facing Fees); provided that, upon the occurrence of a Sharing Event, the participations described above shall be automatically adjusted so that each RL Lender shall have a participation in all then outstanding Letters of Credit under a Tranche, and related obligations as described above, in a percentage equal to its RL Percentage (which adjustments shall occur concurrently with the adjustments described in Section 2.17). Upon any change in the Revolving Loan Commitments or Dollar Percentages of the RL Lenders pursuant to this Agreement (or in the circumstances provided in the proviso to the immediately preceding sentence, the RL Percentages of the RL Lenders pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(bthis Agreement), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoof a Tranche, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new Dollar Percentages or, in the circumstances described in the proviso to the immediately preceding sentence, the RL Percentages of the assignor and assignee Lender, as the case may bevarious RL Lenders.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender Bank shall 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. Any action taken or omitted to be taken by an the Issuing Lender Bank under or in connection with any Letter of Credit issued if taken or omitted in the absence of gross negligence or willful misconduct (as finally determined by it a court of competent jurisdiction), shall not create for such the Issuing Lender Bank any resulting liability to the U.S. Borrower, 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)Person.
(c) In If the event that an Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the U.S. Borrower shall not have reimbursed such amount in full to such the Issuing Lender Bank pursuant to Section 3.05(a), such the Issuing Lender Bank shall promptly notify the Administrative Agent, which and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to such the Administrative Agent for the benefit of the Issuing Lender Bank the amount of such Participant’s Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage Percentage) of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Administrative Agent for the benefit of the Issuing Lender Bank, in Dollars Dollars, such Participant’s Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage 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 the Issuing Bank its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of such unreimbursed amount for (i) any wrongful payment made by the 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 the Issuing Bank (as finally determined by a court of competent jurisdiction) and (ii) with respect to any Letter of Credit with an expiration date after the tenth Business Day prior to the Maturity Date, any payment made by the Issuing Bank in excess of the amount of cash collateral delivered by the U.S. Borrower pursuant to Section 3.02(a)(iii)(y). If and to the extent such Participant shall not have so made its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage Percentage) of the amount of such payment available to respective the Administrative Agent for the benefit of the Issuing LenderBank, such Participant agrees to pay to such the Administrative Agent for the benefit of the Issuing LenderBank, 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 benefit of the Issuing Lender Bank at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Dollar Revolving Loans that are of the same Tranche under which the applicable Letter of Credit was issued maintained as Base Rate Loans hereunder for each day thereafter. The failure of any Participant to make available to an the Issuing Lender Bank its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage 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 the Issuing Lender Bank its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage 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 such the Administrative Agent for the benefit of the Issuing Lender Bank such other Participant’s Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage Percentage) of any such payment.
(d) Whenever an the Issuing Lender Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender Bank shall pay to the Administrative Agent for the benefit of each such Participant which has paid its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage Percentage) thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each the Issuing Lender Bank shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Administrative Agent for the benefit of the Issuing Lender 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 3.04(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), any Agent, the Administrative AgentIssuing 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 (including any underlying transaction between the Borrower any Credit Party or any Subsidiary or Affiliate of the Borrower 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; or
(vi) subject to the provisions of Section 3.04(c), the fact that the expiration date of any Letter of Credit is beyond the Maturity Date.
Appears in 2 contracts
Samples: Credit Agreement (Host Marriott Corp/), Credit Agreement (Host Marriott L P)
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender Bank of any Letter of Credit, such Issuing Lender Bank shall be deemed to have sold and transferred to (i) in the case of a U.S. Letter of Credit, each RL LenderBank, and (ii) in the case of a U.K. Letter of Credit, each Bank with a U.K. Sub-Commitment (each such RL Lender (Bank with respect to any Letter of Credit, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderBank, without recourse or warranty, an undivided interest and participation, in a percentage equal to (x) in the case of a U.S. Letter of Credit, such Participant's Dollar Percentage; PROVIDED that if any U.S. Letter of Credit is issued at a time when (or if such issuance would cause) the Aggregate Non-U.K. Exposure to exceed the Total Non-U.K. Sub-Commitment, then the various Banks shall participate in such U.S. Letter of Credit (or in the case of such an issuance which causes the Aggregate Non-U.K. Exposure to exceed the Total Non-U.K. Sub-Commitment, the portion thereof which causes the Total Non-U.K. Sub-Commitment to be so exceeded) in accordance with the U.K. Percentages of the various Banks; PROVIDED FURTHER, that at such time or times as the Aggregate Non-U.K. Exposure is less than the Total Non-U.K. Sub-Commitment, and so long as no Default or Event of Default is then in existence, the percentage participations of the Banks in any U.S. Letter of Credit issued as described in the immediately preceding proviso shall be readjusted so that, with respect to each outstanding U.S. Letter of Credit, the Banks shall, to the maximum extent otherwise provided in this Section 2.04(a), subject to continued compliance with the immediately preceding proviso, participate in each U.S. Letter of Credit in accordance with their respective Dollar Percentages (in cases where the adjustment pursuant to this proviso will not be sufficient to allow all U.S. Letters of Credit to be participated in full by the Banks in accordance with their Dollar Percentages, with the Administrative Agent to designate from time to time the various outstanding U.S. Letters of Credit where the adjustments pursuant to this proviso shall apply and the amounts thereof, which records shall be conclusive absent manifest error) and (y) in the case of each U.K. Letter of Credit, such Participant’s RL 's U.K. Percentage, in such Letter of Credit, each substitute letter of credit, 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; PROVIDED HOWEVER, that notwithstanding anything to the contrary contained above, upon the occurrence of a Sharing Event, the participations described above shall be automatically adjusted so that each Bank shall have a participation in all then outstanding Letters of Credit, and related obligations as described above, in a percentage equal to its RL Percentage (which adjustments shall occur concurrently with the adjustments described in Section 1.15). Upon any change in the Revolving Loan Commitments or RL the respective Percentages of the Lenders Banks pursuant to Section 2.13, 2.15, 4.02(b) 1.13 or 13.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee LenderBank or of all Banks, as the case may be. With respect to each Letter of Credit from time to time outstanding, the percentage participations therein of the various Banks calculated as provided above in this Section 2.04(a) (including pursuant to the proviso in the second preceding sentence) are herein called the "L/C Participation Percentages" of the various Banks in such Letters of Credit.
(b) In determining whether to pay under any Letter of Credit, no such Issuing Lender Bank shall have any no obligation relative to the other Lenders 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. Any action taken or omitted to be taken by an any Issuing Lender 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 Issuing Lender Bank any resulting liability to the Borrower, any other Credit Party, any Lender Account Party 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)Bank.
(c) In the event that an any Issuing Lender Bank makes any payment 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 Lender Bank pursuant to Section 3.05(a2.05(a), such Issuing Lender 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 Lender Bank the amount of such Participant’s RL 's L/C Participation Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars (in the case of a U.S. Letter of Credit or, upon a Sharing Event, any Letter of Credit) or Pounds Sterling (in the case of a U.K. Letter of Credit at any time prior to a Sharing Event) and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time or, in the case of U.K. Letters of Credit, London time) on any Business Day, 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 the respective Issuing Lender Bank, in Dollars (in the case of a U.S. Letter of Credit or, after a Sharing Event, any Letter of Credit) or Pounds Sterling (in the case of a U.K. Letter of Credit at any time prior to a Sharing Event), such Participant’s RL 's L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL L/C Participation Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Issuing LenderBank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing LenderBank, 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 Lender Bank at the overnight Federal Funds 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 thereafterRate. The failure of any Participant to make available to an the Administrative Agent for the account of the respective Issuing Lender Bank its RL relevant L/C Participation Percentage of any payment under any Letter of Credit issued by such Issuing Lender it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender Bank its RL relevant L/C Participation 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 Lender Bank such other Participant’s RL 's relevant L/C Participation Percentage of any such payment.
(d) Whenever an any Issuing Lender 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 the Participants pursuant to clause (c) above, such Issuing Lender Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay each such Participant which has paid its RL relevant L/C Participation Percentage thereof, in Dollars (in the case of a U.S. Letter of Credit or, after a Sharing Event, any Letter of Credit) or Pounds Sterling (in the case of a U.K. Letter of Credit at any time prior to a Sharing Event) and in same day funds, an amount equal to such Participant’s 's share (based upon on the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon Each Issuing Bank shall, promptly after the request issuance of, or amendment to, a Standby Letter of any ParticipantCredit, give the Administrative Agent, each Participant and the respective Account Party written notice of such issuance or amendment, as the case may be, and such notice shall be accompanied by a copy of the issued Standby Letter of Credit or amendment, as the case may be.
(f) Each Issuing Lender Bank (other than BTCo) shall furnish deliver to such Participant copies the Administrative Agent, promptly on the first Business Day of any standby Letter each week, by facsimile transmission, the aggregate daily Stated Amount available to be drawn under the outstanding Trade Letters of Credit issued by it and such other documentation as may reasonably Issuing Bank for the previous week. 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 requested by drawn under all outstanding Trade Letters of Credit during such Participantcalendar month.
(fg) The obligations of the Participants to make payments to each the Administrative Agent for the account of the respective Issuing Lender 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 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, any Bank, any Issuing 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 (including any underlying transaction between the Borrower any Credit Party or any Subsidiary of the Borrower 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 Participants shall not be obligated to reimburse such Issuing Bank 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. Any action taken or omitted to be taken by 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 Participant.
Appears in 1 contract
Samples: Credit Agreement (Big Flower Press Holdings Inc /Pred/)
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than the Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) 1.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.05(a), such the Issuing 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 such the Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars 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 respective the Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds 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 an the Issuing 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 the Issuing 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 Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each the Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 (Infousa Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than the Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) 2.13 or 13.04(b)12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee RL Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued if taken or omitted in the absence of gross negligence or willful misconduct (as finally determined by it a court of competent jurisdiction), shall not create for such 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 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)Person.
(c) In the event that an the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a), such the Issuing 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 such the Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars 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 respective the Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds 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 an the Issuing 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 the Issuing 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 Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each the Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 an Issuing Lender a Letter of Credit Issuer of any Letter of Credit (and on the Closing Date with respect to any Existing Letter of Credit), such Issuing Lender Letter of Credit Issuer shall be deemed to have sold and transferred to each RL LenderLender with a Commitment, and each such RL Lender (in its capacity under this Section 3.04, each a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantLender’s RL Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and thereunder, the obligations of the Borrower 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 4.2 and the Participants shall have no right to receive any portion of any fees of the nature contemplated by section 4.3), the obligations of any Subsidiary of the Borrower under any Letter of Credit Documents pertaining thereto, and any security therefor for, or guaranty pertaining theretoto, any of the foregoing. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(bsection 13.4(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 section 3.4 to reflect the new RL Percentages of the assignor assigning and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender a Letter of Credit Issuer shall not have any obligation relative to the other Lenders 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. Any action taken or omitted to be taken by an Issuing Lender 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 Lender Letter of Credit Issuer any resulting liability to the Borrower, 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)liability.
(c) In the event that an Issuing Lender a Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed (or caused any applicable Subsidiary to reimburse) such amount in full to such Issuing Lender Letter of Credit Issuer pursuant to Section 3.05(asection 3.3(a), such Issuing Lender Letter of Credit Issuer shall promptly notify the Administrative Agent, which 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 Lender Letter of Credit Issuer, the amount of such Participant’s RL 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, prior to 12:00 Noon (New York time) on any Business Day, notifies any 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 respective Issuing Lender in Dollars Administrative Agent for the account of the relevant Letter of Credit Issuer such 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 respective Issuing Lenderthe 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 LenderLetter 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 Lender Letter of Credit Issuer at the overnight Federal Funds 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 thereafterEffective Rate. The failure of any Participant to make available to an Issuing Lender the Administrative Agent for the account of the relevant Letter of Credit Issuer 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 Lender Letter of Credit Issuer 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 Lender Letter of Credit Issuer such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender 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 the Participants pursuant to clause (csection 3.4(c) above, such Issuing Lender Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which that has paid its RL Percentage thereof, in Dollars U.S. dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) Percentage of the principal amount of such reimbursement obligation thereof and interest thereon accruing after the purchase of the respective participations, as and to the extent so received.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of each Issuing Lender 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 that the Borrower (or any of its Subsidiaries Subsidiary) 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, any ParticipantLetter of Credit Issuer, any Lender, or any other Personperson, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower (or any Subsidiary of the Borrower Subsidiary) and the beneficiary named in any such Letter of Credit), other than any claim that the Borrower (or any Subsidiary that is the account party with respect to a Letter of Credit) may have against any applicable Letter of Credit Issuer for gross negligence or willful 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 Borrower, the Participants will reimburse and indemnify the 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 that 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
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to (i) in the case of a Multicurrency Facility Letter of Credit, each Multicurrency Facility RL LenderLender and (ii) in the case of a Dollar Facility Letter of Credit, and each such Dollar Facility RL Lender (each such Lender with respect to any Letter of Credit, in its capacity under this Section 3.04, a “"L/C Participant”) "), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, in a percentage equal to (x) in the extent case of a Multicurrency Facility Letter of Credit, such L/C Participant’s 's Multicurrency Facility RL Percentage or (y) in the case of a Dollar Facility Letter of Credit, such L/C Participant's Dollar Facility RL Percentage, in such Multicurrency Facility Letter of Credit or Dollar Facility Letter of Credit, as the case may be, each drawing or payment made thereunder (each, a "Drawing") 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 or Dollar Facility RL Lenders, as the case may be, as provided in Section 4.01(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 any change in (x) the Multicurrency Facility Revolving Loan Commitments or and, as a result thereof the Multicurrency Facility RL Percentages Percentages, of the Multicurrency Facility RL Lenders pursuant to Section 2.13, 2.15, 4.02(b) Sections 2.13 or 13.04(b)13.04, it is hereby agreed that, with respect to all outstanding Multicurrency Facility Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new Multicurrency Facility RL Percentages of the assignor Multicurrency Facility RL Lenders and assignee Lender(y) the Dollar Facility Revolving Loan Commitments and, as a result thereof the Dollar Facility RL Percentages, of the Dollar Facility RL Lenders pursuant to Sections 2.13 or 13.04, it is hereby agreed that with respect to all outstanding Dollar Facility Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new Dollar Facility RL Percentages of the Dollar 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 (in the case of a Multicurrency Facility Letter of Credit) or Dollar Facility RL Lenders (in the case of a Dollar Facility Letter of Credit) calculated as provided above in this Section 3.04(a) are herein called the "L/C Participation Percentages" of the various Multicurrency Facility RL Lenders or Dollar Facility RL Lenders, as the case may be, 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. In addition to the adjustments contemplated above, upon the occurrence of a Sharing Event, in accordance with the provisions of Section 2.14(d), the "L/C Participation Percentages" of the RL Lenders shall be adjusted, so that each RL Lender shall participate in each outstanding Letter of Credit (whether a Multicurrency Facility Letter of Credit or a Dollar Facility Letter of Credit) in accordance with its RL Percentage, in each case as more fully described in Section 2.14(d). In any instance described in the immediately preceding sentence, each RL Lender shall be a L/C Participant with respect to each Letter of Credit and its L/C Participation Percentage in each Letter of Credit shall be determined by the Administrative Agent in accordance with the relevant provisions of Section 2.14(d). Furthermore, upon the occurrence of a Sharing Event and as more fully set forth in Section 2.14, additional sub-participations may be required to be granted by the various RL Lenders in their participations in outstanding Letters of Credit, in each case in accordance with, and subject to the provisions of, Section 2.14.
(b) In determining whether to pay under any Letter of Credit, no the respective Issuing Lender shall have any no obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct (as determined by a court of competent jurisdiction), shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender Account Party 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)Lender.
(c) In the event that an any Issuing 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 Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant therein (i.e., (A) if no Sharing Event has occurred, either (x) the Multicurrency Facility RL Lenders in the case of a Multicurrency Facility Letter of Credit or (y) the Dollar Facility RL Lenders in the case of a Dollar Facility Letter of Credit or (B) if a Sharing Event has occurred, each RL Lender) of such failure, and each L/C Participant therein shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Lender the amount of such L/C Participant’s RL '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 3.05(a)) in U.S. Dollars (or, to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Account Party in Canadian Dollars, in Canadian Dollars) and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, 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 Lender, in U.S. Dollars (or in Canadian Dollars to the extent the respective Unpaid Drawing is required to be paid by the respective Account Party in Canadian Dollars pursuant to the provisions of Section 3.05(a)), such L/C Participant’s RL '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 RL L/C Participation Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Issuing Lender, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from 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 Lender at the overnight Federal Funds Rate for (or, in the first three days and case of amounts owed in Canadian Dollars, at the cost to the Administrative Agent of acquiring overnight funds in Canadian Dollars), provided that if any L/C Participant does not make available to the Administrative Agent any amounts required to be made available by it as described above within 2 Business Days after the respective L/C Participant has been notified by the Administrative Agent or the respective Issuing Lender to make such amounts available, then the respective L/C Participant shall pay interest rate applicable on the amounts demanded of it at the same rates payable from time to Revolving Loans that are maintained as Base Rate Loans for each day thereaftertime by the respective Account Party on the respective Unpaid Drawings pursuant to Section 3.05(a). The failure of any L/C Participant to make available to an the Administrative Agent for the account of the respective Issuing Lender its RL relevant L/C Participation Percentage of any payment under any Letter of Credit issued by such Issuing Lender it shall not relieve any other L/C Participant in the respective Letter of Credit of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its RL 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 Lender such other L/C Participant’s RL 's relevant L/C Participation Percentage of any such payment.
(d) Whenever an any Issuing 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 the L/C Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay each such L/C Participant which has paid its RL relevant L/C Participation Percentage thereof, in U.S. Dollars (or in Canadian Dollars in the case of payments to be made in Canadian Dollars pursuant to Section 3.05(a)) and in same day funds, an amount equal to such L/C Participant’s 's share (based upon on the proportionate aggregate amount originally funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective 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 Issuing Lender 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 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) Each Issuing Lender (other than DBTCA) shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by facsimile transmission, the aggregate daily Stated Amount available to be drawn under the outstanding Trade Letters of Credit issued by such Issuing Lender for the previous week.
(g) The obligations of the L/C Participants to make payments to each the Administrative Agent for the account of the respective Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the 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 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 any Agent, any Lender, any Issuing Lender, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction -85- between the Borrower any Credit Party or any Subsidiary of the Borrower 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 constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction). 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).
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such RL Lender (in its capacity under this Section 3.042.04, a “"Participant”") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the RL Lenders pursuant to Section 2.13, 2.15, 4.02(b) 1.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee RL Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars 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 the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower Holdings or any Subsidiary of the Borrower 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 an the respective Issuing Lender Bank of any Letter of Credit, such Issuing Lender Bank shall be deemed to have sold and transferred to each RL LenderBank with a Revolving Loan Commitment, and other than such Issuing Bank (each such RL Lender (Bank, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderBank, without recourse or warranty, an undivided interest and participationparticipation in, to the extent of such Participant’s 's RL Percentage, Percentage in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower Revolving Loan Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining theretothereto (although Letter of Credit Fees shall be paid directly to the Administrative Agent for the ratable 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). Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders Banks pursuant to Section 2.13, 2.15, 4.02(b) 1.13 or 13.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations partici- pations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee LenderBank, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the respective Issuing Lender Bank shall have any no obligation relative to the other Lenders 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. Any action taken or omitted to be taken by an any Issuing Lender 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 Issuing Lender Bank any resulting liability to the either Revolving Loan Borrower, any other Credit Party, any Lender Bank 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)Person.
(c) In the event that an any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Loan Borrower shall not have reimbursed such amount in full to such Issuing Lender Bank pursuant to Section 3.05(a2.05(a), such Issuing Lender 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 such Issuing Lender Bank the amount of such Participant’s 's RL Percentage of such unreimbursed payment (x) in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective such Issuing Lender Bank, in Dollars Dollars, such Participant’s 's RL Percentage of the amount of such payment (or, in the case of payments made in Pounds Sterling, the Dollar Equivalent thereof) 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 respective such Issuing LenderBank, such Participant agrees to pay to such Issuing LenderBank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender Bank at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Dollar Revolving Loans that are maintained as Base Rate Loans hereunder for each day thereafter. The failure of any Participant to make available to an such Issuing Lender Bank 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 Lender 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 Lender Bank such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender Bank shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender Bank shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender 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 respective Revolving Loan Borrower 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the respective Revolving Loan Borrower or any Subsidiary or Affiliate of the respective Revolving Loan 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 an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed The L/C Issuer irrevocably agrees to have sold grant and transferred hereby grants to each RL Lender, and, to induce the L/C Issuer to issue Letters of Credit hereunder, each Lender irrevocably agrees to accept and each purchase and hereby accepts and purchases from the L/C Issuer for such RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably Lender's own account and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, risk an undivided interest equal to such Lender's Percentage in the L/C Issuer's obligations and participation, to rights under each Letter of Credit issued hereunder and each draft paid by the extent L/C Issuer hereunder.
(i) the Borrower shall have previously reimbursed the L/C Issuer for the amount of such Participant’s RL Percentage, draft or (ii) there is a sufficient amount in any cash collateral account established pursuant to Section 2.7 to cover payments to be made under such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be thereafter make a Revolving Loan in an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full equal to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such Participant’s RL Lender's Percentage of the amount of such payment made by the L/C Issuer, together with any accrued and unpaid interest thereon. Each Lender shall pay the proceeds of its Revolving Loan, in immediately available funds, directly to the Agent for the account of the L/C Issuer, (i) not later than 1:00 p.m. New York time, on such the following Business Day if the Agent shall have provided notice prior to 11:30 a.m. New York time, and (ii) if the Agent shall have provided notice after 11:30 a.m. New York time, not later than 1:00 p.m. New York time, on the second following Business Day. Revolving Loans made by the Lenders to repay amounts under Letters of Credit pursuant to this Section shall constitute Revolving Loans hereunder, initially shall be Base Rate Loans and shall be subject to all of the provisions of this Agreement concerning Revolving Loans, except that such Revolving Loans shall be made upon demand by the Agent as set forth above rather than upon notice by the Borrower, and shall be made, notwithstanding anything in same day funds. If and this Agreement to the extent contrary, without regard to satisfaction of conditions precedent to the making of Revolving Loans set forth in Article V of this Agreement and, notwithstanding any termination of the Revolving Loan Commitment prior to the Stated Maturity Date, Revolving Loans shall be made to reimburse the L/C Issuer for any drafts paid under any Letter of Credit outstanding on the date of such Participant shall not have so made its RL Percentage of termination. Each Lender's obligation to make Revolving Loans in the amount of such payment available to respective Issuing Lenderits Percentage of any unreimbursed amounts outstanding under a Letter of Credit pursuant hereto is several, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafternot joint or joint and several. The failure of any Participant Lender to perform its obligation to make available to an Issuing Lender its RL a Revolving Loan in the amount of such Lender's Percentage of any payment unreimbursed amounts outstanding under any a Letter of Credit issued by such Issuing Lender shall will not relieve any other Participant Lender of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on a Revolving Loan in the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement other Lender's Percentage of such amounts. Any Lender may, but shall have no obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request to any Person to, assume all or any portion of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants non-performing Lender's obligation to make payments to each Issuing Lender with respect to Letters a Revolving Loan in the amount 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 such Lender's Percentage of this Agreement such amount outstanding 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. The Borrower agrees to accept the Revolving Loans hereinabove provided, any transferee whether or not such loans could have been made pursuant to the terms of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any ParticipantSection 5.2 hereof, or any other Person, whether in connection with Section of this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (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 (Microsemi Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by an The Issuing Lender of any Letter of Creditirrevocably agrees to grant and hereby grants to each Lender, such and, to induce the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter issue Letters of Credit, each drawing or payment made thereunder Lender irrevocably agrees to accept and purchase and hereby accepts and purchases from the obligations of Issuing Lender, on the Borrower under this Agreement with respect theretoterms and conditions set forth below, for such Lender’s own account and any security therefor or guaranty pertaining thereto. Upon any change risk an undivided interest equal to such Lender’s Commitment Percentage in the Revolving Loan Commitments or RL Percentages Issuing Lender’s obligations and rights under and in respect of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters each Letter of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect amount of each draft paid by the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the 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 thereunder. Each Lender agrees with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrowerthat, any other Credit Party, any Lender or any other Person unless such action if a draft 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 an Issuing Lender makes any payment paid under any Letter of Credit issued by it and for which the Borrower shall Issuing Lender is not have reimbursed such amount in full by the Borrowers in accordance with the terms of this Agreement, such Lender shall pay to the Issuing Lender upon demand at the Issuing Lender’s address for notices specified herein an amount equal to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such ParticipantLender’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such Participant’s RL Commitment Percentage of the amount of such payment on draft, or any part thereof, that is not so reimbursed. Each Lender’s obligation to pay such Business Day in same day funds. If amount shall be absolute and to the extent such Participant unconditional and shall not have so made its RL Percentage of the amount of such payment available to respective Issuing Lenderbe affected by any circumstance, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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:
including (i) any lack set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Issuing Lender, the Borrowers or any other Person for any reason whatsoever, (ii) the occurrence or continuance of validity a Default or enforceability 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 of other Loan Document by 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 CreditBorrowers, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, other Loan Party or any other PersonLender or (v) any other circumstance, happening or event whatsoever, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or 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 not similar 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 foregoing; provided that each Lender shall only be obligated to make any such payment in Dollars (and not any foreign currency) in accordance with the provisions of any of the Credit Documents; or
(v) the occurrence of any Default or Event of DefaultSection 3.10 hereof.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such 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 respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at at, the overnight Federal Funds Rate greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation for the first three days and at the interest rate otherwise applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day fundsfunds without any offset, abatement, withholding or deduction whatsoever. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such 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 respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at at, the overnight Federal Funds Rate greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation for the first three days and at the interest rate otherwise applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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 CreditLoan 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 CreditLoan Documents; or
(v) the occurrence of any Default or Event of Default.;
(vi) any amendment or extension of any Letter of Credit; or
(vii) the occurrence of the Revolving Loan Maturity Date or the reduction or termination of the Revolving Loan Commitments.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred transferred to each RL Lender, and each such RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such 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 respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification 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 circumstancescircumstances:
(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 transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated contemplated herein or any unrelated transactions (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 statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance 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 an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such 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 respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower Holdings or any Subsidiary of the Borrower 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 an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than the Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) 1.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.05(a), such the Issuing 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 such the Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (A.M. New York time) 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 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 respective the Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds 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 an the Issuing 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 the Issuing 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 Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each the Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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
or (v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Infousa Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender Bank of any Letter of Credit, such the Issuing Lender Bank shall be deemed to have sold and transferred to each RL LenderBank, and other than the Issuing Bank (each such RL Lender (Bank, in its capacity under this Section 3.041.16, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing LenderBank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL 's Loan Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Loan Percentages of the Lenders Banks pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(b)12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 1.16 to reflect the new RL Loan Percentages of the assignor and assignee LenderBank, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender Bank shall not have any an obligation relative to the other Lenders 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. Any action taken or omitted to be taken by an the Issuing Lender Bank under or in connection with any Letter of Credit issued if taken or omitted in the absence of gross negligence or willful misconduct (as finally determined by it a court of competent jurisdiction), shall not create for such the Issuing Lender Bank any resulting liability to the Borrower, any other Credit Party, any Lender Bank 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)Person.
(c) In the event that an the Issuing Lender Bank 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 Lender Bank pursuant to Section 3.05(a1.17(a), such the Issuing Lender 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 such the Issuing Lender Bank the amount of such Participant’s RL 's Loan Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender Bank in Dollars such Participant’s RL 's Loan 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 Loan Percentage of the amount of such payment available to respective the Issuing LenderBank, such Participant agrees to pay to such the Issuing LenderBank, 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 Lender Bank at the overnight Federal Funds 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 an the Issuing Lender Bank its RL Loan 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 the Issuing Lender Bank its RL Loan 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 Lender Bank such other Participant’s RL 's Loan Percentage of any such payment.
(d) Whenever an the Issuing Lender Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender Bank shall pay to each such Participant which has paid its RL Loan Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each the Issuing Lender Bank shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing Lender 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 (Eldertrust)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower U.S. Borrowers, the Australian Borrowers, the Canadian Borrowers, the Dutch Borrowers or the U.K. Borrowers, as the case may be, under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) Section 2.14 or Section 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the any Borrower, 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 an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower U.S. Borrowers, the Australian Borrowers, the Canadian Borrowers, the Dutch Borrowers or the U.K. Borrowers, as applicable, shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in U.S. Dollars and (or, in same day the case of any unreimbursed payment made in a currency other than U.S. Dollars, the U.S. Dollar Equivalent of such unreimbursed payment, as determined by the Issuing Lender on the date on which such unreimbursed payment was made by such Issuing Lender) in immediately available funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York City time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in U.S. Dollars (or, in the case of any unreimbursed payment made in a currency other than U.S. Dollars, the U.S. Dollar Equivalent thereof) such Participant’s RL Percentage of the amount of such payment on such Business Day in same day 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 the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate (or, in the case of 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 an Issuing 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 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in U.S. Dollars (or, in the case of any unreimbursed payment made in a currency other than U.S. Dollars, the U.S. Dollar Equivalent thereof) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower Holdings or any Subsidiary of the Borrower 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 an Issuing Lender The issuer of any each Letter of Credit, such Issuing Lender shall be deemed Credit irrevocably agrees to have sold grant and transferred hereby grants to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participationand, to the extent of induce such Participant’s RL Percentage, in issuer to issue such Letter of Credit, each drawing or payment made thereunder Lender irrevocably agrees to accept and purchase and hereby accepts and purchases from such issuer, on the terms and conditions set forth below, for such Lender’s own account and risk an undivided pro rata participation interest in such issuer’s obligations and rights under and in respect of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters each Letter of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect amount of each draft paid by the new RL Percentages issuer thereunder based on such Lender’s Working Capital Facility Percentage of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter Working Capital Facility Commitment Amount. Each Lender agrees with each issuer of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such a Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrowerthat, any other Credit Party, any Lender or any other Person unless such action if a draft 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 an Issuing Lender makes any payment paid under any Letter of Credit issued for which such issuer is not reimbursed in full by it and the Borrower in accordance with the terms of this Agreement, such Lender shall not have reimbursed pay to the issuer of such Letter of Credit upon demand, at such issuer’s address for notices specified herein, an amount in full equal to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such ParticipantLender’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such Participant’s RL Working Capital Facility Percentage of the amount of such payment on such Business Day in same day fundsdraft, or any part thereof, that is not so reimbursed. If and Notwithstanding anything to the extent contrary set forth in this Agreement, each Lender’s obligation to pay such Participant amount shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such Lender may have so made its RL Percentage against the issuer, the Borrower 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 amount other conditions specified in Section 4.2, (iii) any adverse change in the condition (financial or otherwise) of such payment available the Borrower or any other Loan Party, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to respective Issuing any of the foregoing. At any time during which a Lender is a Downgraded Lender, such Participant agrees Downgraded Lender shall provide to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereonthe Agent, for the benefit of the issuer of each day from such date until the date such amount is paid Letter of Credit, cash collateral (or other security acceptable to such Issuing Lender at the overnight Federal Funds 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 issuer of any Participant to make available to an Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of in its obligation hereunder to make available to such Issuing 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 Lender such other Participant’s RL Percentage of any such payment.
(dsole discretion) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such ParticipantDowngraded Lender’s share (based upon the proportionate aggregate amount originally funded by pro rata participation interest in such Participant to the aggregate amount funded by all Participants) issuer’s obligations under and in respect of the principal amount Letter of Credit. The issuer of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested shall pay to the Agent, for the account of each Downgraded Lender, interest on any cash collateral provided by such ParticipantDowngraded Lender on each Quarterly Payment Date, at a rate not less than the Eurodollar Base Rate.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 an Issuing Lender a Letter of Credit Issuer of any Letter of Credit (and on the Closing Date with respect to any Existing Letter of Credit), such Issuing Lender Letter of Credit Issuer shall be deemed to have sold and transferred to each RL LenderLender with a Commitment, and each such RL Lender (in its capacity under this Section 3.04, each a “"Participant”") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Lender's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and thereunder, the obligations of the Borrower 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 4.2 and the Participants shall have no right to receive any portion of any fees of the nature contemplated by section 4.3), the obligations of any Subsidiary of the Borrower under any Letter of Credit Documents pertaining thereto, and any security therefor for, or guaranty pertaining theretoto, any of the foregoing. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) or 13.04(bsection 13.4(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 section 3.4 to reflect the new RL Percentages of the assignor assigning and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender a Letter of Credit Issuer shall not have any obligation relative to the other Lenders 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. Any action taken or omitted to be taken by an Issuing Lender 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 Lender Letter of Credit Issuer any resulting liability to the Borrower, 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)liability.
(c) In the event that an Issuing Lender a Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed (or caused any applicable Subsidiary to reimburse) such amount in full to such Issuing Lender Letter of Credit Issuer pursuant to Section 3.05(asection 3.3(a), such Issuing Lender Letter of Credit Issuer shall promptly notify the Administrative Agent, which 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 Lender Letter of Credit Issuer, the amount of such Participant’s RL '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, prior to 12:00 Noon (New York time) on any Business Day, notifies any 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 respective Issuing Lender in Dollars Administrative Agent for the account of the relevant Letter of Credit Issuer such Participant’s RL '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 respective Issuing Lenderthe 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 LenderLetter 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 Lender Letter of Credit Issuer at the overnight Federal Funds 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 thereafterEffective Rate. The failure of any Participant to make available to an Issuing Lender the Administrative Agent for the account of the relevant Letter of Credit Issuer 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 Lender Letter of Credit Issuer 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 Lender Letter of Credit Issuer such other Participant’s RL 's Percentage of any such payment.
(d) Whenever an Issuing Lender 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 the Participants pursuant to clause (csection 3.4(c) above, such Issuing Lender Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which that has paid its RL Percentage thereof, in Dollars U.S. dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) 's Percentage of the principal amount of such reimbursement obligation thereof and interest thereon accruing after the purchase of the respective participations, as and to the extent so received.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of each Issuing Lender 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 that the Borrower (or any of its Subsidiaries Subsidiary) 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, any ParticipantLetter of Credit Issuer, any Lender, or any other Personperson, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower (or any Subsidiary of the Borrower Subsidiary) and the beneficiary named in any such Letter of Credit), other than any claim that the Borrower (or any Subsidiary that is the account party with respect to a Letter of Credit) may have against any applicable Letter of Credit Issuer for gross negligence or willful 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 Borrower, the Participants will reimburse and indemnify the 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 that 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
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL RF Lender, and other than such Issuing Lender (each such RL Lender (RF Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL 's RF Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL RF Percentages of the Lenders pursuant to Section 2.131.13, 2.15, 4.02(b) 3.02 or 13.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL RF Percentages of the assignor and assignee LenderLender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no such Issuing Lender shall have any no obligation relative to the other RF Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is if taken or omitted to be taken with in the absence of gross negligence or willful misconduct on the part of such Issuing Lender (misconduct, as determined by a court of competent jurisdiction in a final and non-appealable decision)proceeding, shall not create for such Issuing Lender any resulting liability to the Borrower or any Lender.
(c) In the event that an any Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL 's RF Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective such Issuing Lender in Dollars such Participant’s RL 's RF 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 RF Percentage of the amount of such payment available to respective such Issuing Lender, such Participant agrees to pay to such Issuing Lender, 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 Lender at the overnight Federal Funds 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 an such Issuing Lender its RL RF Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL RF 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 Lender such other Participant’s RL 's RF Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL RF Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender the Administrative Agent shall furnish deliver to such Participant copies of any standby Letter 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) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit issued by such Issuing Lender 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 (Waters Corp /De/)
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by an Issuing Lender a Letter of Credit Issuer of any Letter of Credit, such Issuing Lender Letter of Credit Issuer shall be deemed to have sold and transferred to each other RL LenderBank, and each such RL Lender Bank (in its capacity under this Section 3.04each, a “"Participant”") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest inter est and participation, to the extent of such Participant’s 's Dollar RL Percentage, in such Letter of Credit, each substitute Letter of Credit, each drawing or payment made thereunder and the obligations of the U.S. 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; provided that, upon the occurrence of a Sharing Event, the -------- participations described above shall be automatically adjusted so that each RL Bank shall have a participation in all then outstanding Letters of Credit, and related obligations as described above, in a percentage equal to its Sharing Percentage (which adjustment shall occur concurrently with the adjustments described in Section 1.15). Upon any change in the Revolving Loan Commitments or the Dollar RL Percentages of the Lenders XX Xxxxx pursuant to Section 2.131.13 or 13.04(b) (or, 2.15in the circumstances provided in the proviso to the immediately preceding sentence, 4.02(bthe Sharing Percentages of the XX Xxxxx pursuant to this Agreement) or 13.04(b)as a result of a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new Dollar RL Percentages (or, in the circumstances provided in the proviso to the immediately preceding sentence, the Sharing Percentages) of the assignor assigning and assignee LenderBank or of all XX Xxxxx, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender Letter of Credit Issuer shall have any obligation relative to the other Lenders 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. Any action taken or omitted to be taken by an Issuing Lender 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 Lender Letter of Credit Issuer any resulting liability to the Borrower, 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)liability.
(c) In the event that an Issuing Lender any Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the U.S. Borrower shall not have reimbursed such amount in full to such Issuing Lender the Letter of Credit Issuer pursuant to Section 3.05(a2.04(a), such Issuing Lender Letter of Credit Issuer shall promptly notify the Administrative Agent, which 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 Lender Letter of Credit Issuer, the amount of such Participant’s 's Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing Percentage) of such unreimbursed payment in U.S. Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, notifies any Participant required to fund a payment under a Letter of CreditCredit prior to 11:00 A.M. (New York time) on any Business Day, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in Dollars Letter of Credit Issuer such Participant’s 's Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing 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 Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing Percentage) of the amount of such payment available to the Administrative Agent for the account of the respective Issuing LenderLetter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing LenderLetter 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 Lender the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds 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 thereafterRate. The failure of any Participant to make available to an Issuing Lender the Administrative Agent for the account of the respective Letter of Credit Issuer its Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing Percentage) of any payment under any Letter of Credit issued by such Issuing Lender it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender Letter of Credit Issuer its Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing 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 Lender Letter of Credit Issuer such other Participant’s 's Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing Percentage) of any such payment.
(d) Whenever an Issuing Lender any Letter of Credit Issuer receives a payment of a reimbursement xxxx bursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from the Participants pursuant to clause (c) above, such Issuing Lender Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing Percentage) thereof, in U.S. Dollars and in same day funds, an amount equal to such Participant’s share 's Dollar RL Percentage (based upon or, after the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participantsoccurrence of a Sharing Event, its Sharing Percentage) of the principal amount of such reimbursement obligation thereof and interest thereon accruing after the purchase of the 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 U.S. Borrower written notice of any Participantthe issuance of, each Issuing Lender 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 standby the Standby Letter of Credit or Standby Letters of Credit issued by it and each such other amendment or modification thereto. Upon receipt of any such written notice from a Letter of Credit Issuer, the Administrative Agent shall promptly forward a copy of such notice and accompanying documentation as may reasonably be requested by such to each Participant.
(f) Each Letter of Credit Issuer (other than CSFB) shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by facsimile transmission, the aggregate daily Stated Amount available to be drawn under the outstanding Trade Letters of Credit issued by such Letter of Credit Issuer for the previous week. 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 Trade Letters of Credit during such calendar month.
(g) The obligations of the Participants to make payments to each Issuing Lender 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 U.S. 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 any Agent, any ParticipantLetter of Credit Issuer, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the U.S. Borrower or any Subsidiary of the Borrower 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 (MTL Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an The L/C Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed Bank irrevocably agrees to have sold grant and transferred hereby grants to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participationand, to induce the extent of such Participant’s RL Percentage, in such Letter L/C Issuing Bank to issue Letters of Credit, each drawing or payment made thereunder Lender irrevocably agrees to accept and purchase and hereby accepts and purchases from the L/C Issuing Bank, on the terms and conditions set forth below, for such Lender’s own account and risk an undivided interest equal to such Lender’s Commitment Percentage in the L/C Issuing Bank’s obligations and rights under and in respect of each Letter of Credit and the obligations amount of each draft paid by the L/C Issuing Bank thereunder. Each Lender agrees with the L/C Issuing Bank that, if a draft is paid under any Letter of Credit for which the L/C Issuing Bank is not reimbursed in full by the Borrower in accordance with the terms of this Agreement, such Lender shall pay to the L/C Issuing Bank upon demand at the L/C Issuing Bank’s address for notices specified herein an amount equal to such Lender’s Commitment Percentage of the amount of such draft, or any part thereof, that is not so reimbursed. Each 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 Lender or the Borrower may have against the L/C Issuing Bank, the Borrower 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 Borrower under or any other Loan Party, (iv) any breach of this Agreement with respect theretoor any other Loan Document by the Borrower, and any security therefor other Loan Party or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments other Lender or RL Percentages (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the Lenders pursuant foregoing; provided that each Lender shall only be obligated to make any such payment in Canadian Dollars or Dollars (and not any foreign currency) in accordance with the provisions of Section 2.13, 2.15, 4.02(b) or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be3.10 hereof.
(b) In determining whether If any amount required to pay be paid by any Lender to the L/C Issuing Bank pursuant to Section 3.04(a) in respect of any unreimbursed portion of any payment made by the L/C Issuing Bank under any Letter of CreditCredit is paid to the L/C Issuing Bank within three Business Days after the date such payment is due, no Issuing such Lender shall have any obligation relative pay to the other Lenders other than L/C Issuing Bank on demand an amount equal to confirm the product of (i) such amount, times (ii) the daily average Federal Funds Rate or the BA Rate for a 30 day Interest Period, as applicable, during the period from and including the date such payment is required to the date on which such payment is immediately available to the L/C 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 documents such amount required to be delivered under such Letter of Credit appear paid by any Lender pursuant to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall Section 3.04(a) is not create for such Issuing Lender any resulting liability made available to the BorrowerL/C Issuing Bank by such Lender within three Business Days after the date such payment is due, any other Credit Partythe L/C Issuing Bank shall be entitled to recover from such Lender, on demand, such amount with interest thereon calculated from such due date at the rate per annum set forth in Section 2.08(a)(i), for the Lenders, applicable to Base Rate Advances or Prime Rate Advances, as applicable. A certificate of the L/C Issuing Bank submitted to any Lender or with respect to any other Person unless such action is taken or omitted to amounts owing under this Section shall be taken with gross negligence or willful misconduct on conclusive in the part absence of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)manifest error.
(c) In Whenever, at any time after the event that an L/C Issuing Lender makes any Bank has made payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing has received from any Lender pursuant to Section 3.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such Participant’s RL Percentage of the amount its pro rata share 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 respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with Section 3.04(a), the terms and conditions of this Agreement under all circumstances, including, without limitation, L/C Issuing Bank receives 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 payment related to such Letter of Credit (whether directly from the Borrower or any Person for whom any such transferee may be actingotherwise, including proceeds of collateral applied thereto by the L/C Issuing Bank), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter payment of Creditinterest on account thereof, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between L/C Issuing Bank will distribute to such Lender its pro rata share thereof; provided, however, that in the Borrower or any Subsidiary of the Borrower and the beneficiary named in event that any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving payment received by the L/C Issuing Bank shall be required to be forgedreturned by the L/C Issuing Bank, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) such Lender shall return to the surrender or impairment of any security for L/C Issuing Bank the performance or observance of any of portion thereof previously distributed by the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of DefaultL/C Issuing Bank to it.
Appears in 1 contract
Samples: Credit Agreement (Sears Canada Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any (x) RL Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and (y) CL Letter of Credit, such Issuing Lender shall be deemed to have sold and issued to each CL Lender, (each such RL Lender (or CL Lender, as the case may be, in its capacity under this Section 3.042.04, a “"Participant”") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage or CL Percentage, as the case may be, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the RL Lenders or in the CL Percentages of the CL Lenders, in each case pursuant to Section 2.131.13, 2.15, 4.02(b) 1.15 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages or CL Percentages of the assignor and assignee RL Lender or CL Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an Issuing Lender makes any payment under any RL Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a RL Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars 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 the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate 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 an Issuing Lender its RL Percentage of any payment under any RL Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any RL Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s 's RL Percentage of any such payment.
(ii) In the event that an Issuing Lender makes any payment under any CL Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2.05(a) on or before the seventh day immediately succeeding the date such payment is made, each CL Lender hereby irrevocably authorizes the Administrative Agent to reimburse such Issuing Lender for such amount solely from such CL Lender's CL Percentage of the Credit-Linked Deposits on deposit with the Administrative Agent in the Credit-Linked Deposit Account.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage or CL Percentage thereof, as the case may be, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all such Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase funding of the respective participationsparticipations (it being understood and agreed that any such payment to be made pursuant to this Section 2.04(d) to a Participant which is a CL Lender shall be made by such Issuing Lender to the Administrative Agent for the account of such CL Lender and for deposit in the Credit-Linked Deposit Account).
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 or continuation of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by an the respective Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than such Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) 1.13 or 13.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the respective Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as finally determined by a court of competent jurisdiction in a final and non-appealable decisionjurisdiction).
(c) In the event that an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York Boston, Massachusetts 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 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 the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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.day
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by an the Issuing Lender Bank of any Letter of Credit, such the Issuing Lender Bank shall be deemed to have sold and transferred to each RL LenderBank with a Revolving Loan Commitment, and other than the Issuing Bank (each such RL Lender (Bank, in its capacity under this Section 3.04, a “"Participant”) "), and each such Participant shall be deemed ----------- irrevocably and unconditionally to have purchased and received from such the Issuing LenderBank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL 's Percentage, in such Letter of Credit, each substitute letter of credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders Banks pursuant to Section 2.13, 2.15, 4.02(b) 2.13 or 13.04(b)15.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee LenderBank or of all Banks with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender Bank shall not have any obligation relative to the other Lenders 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. Any action taken or omitted to be taken by an the Issuing Lender Bank under or in connection with any Letter of Credit issued by it Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Lender Bank any resulting liability to the Borrower, any other Credit Party, any Lender Borrower 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)Bank.
(c) In the event that an the Issuing Lender Bank 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 Lender Bank pursuant to Section 3.05(a), such the Issuing Lender 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 such the Administrative Agent for the account of the Issuing Lender Bank the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Administrative Agent at the Payment Office of the Administrative Agent for the account of the Issuing Lender Bank in Dollars such Participant’s RL '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 respective the Administrative Agent for the account of the Issuing LenderBank, such Participant agrees to pay to such the Administrative Agent for the account of the Issuing LenderBank, 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 the Administrative Agent for the account of the Issuing Lender Bank at the overnight Federal Funds 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 thereafterRate. The failure of any Participant to make available to an the Administrative Agent for the account of the Issuing Lender Bank 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 Lender 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 the Administrative Agent for the account of such Issuing Lender Bank such other Participant’s RL 's Percentage of any such payment.
(d) Whenever an the Issuing Lender 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 the Participants pursuant to clause (c) aboveSection 3.04(c), such the Issuing Lender Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon on the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Administrative Agent for the account of the Issuing Lender Bank with respect to Letters of Credit issued 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 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 of the Administrative AgentAgents, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 an each Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than such Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “Participant”) ), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13Sections 1.15, 2.15, 4.02(b) 1.16 or 13.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee LenderLenders and/or Additional Lenders, as the case may be.
(b) In determining whether to pay under any Letter of CreditCredit issued by it, no Issuing Lender shall have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an any Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such Participant’s 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 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 RL Percentage of the amount of such payment available to the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, Lender forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an the respective Issuing 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 Lender its RL Percentage of any such payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit 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 Trizec or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any ParticipantIssuing Lender, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower Trizec or any Subsidiary of the Borrower 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 an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) 2.13 or 13.04(b12.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the 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 be genuine and correct and to have been signed, sent or made by a proper Person and substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the any Borrower, any other Credit Loan Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or negligence, willful misconduct or bad faith on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). The Issuing Lender may employ agents and attorneys-in-fact in connection with any matter relating to Letters of Credit and shall not be liable for the negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.
(c) The Loan Parties assume all risks of the acts, omissions or misuses of any Letter of Credit by the beneficiary. In connection with issuance of any Letter of Credit, none of Administrative Agent, Issuing Lender or any Lender shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any related documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any related documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any related documents or of any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in a Letter of Credit or the related documents; any deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract between a shipper or vendor and a Loan Party (or an Affiliate thereof); errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical terms; the misapplication by a beneficiary of any Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the control of the Issuing Lender, the Administrative Agent or any Lender, including any act or omission of a Governmental Authority. The rights and remedies of the Issuing Lender under the Loan Documents shall be cumulative. The Issuing Lender shall be fully subrogated to the rights and remedies of each beneficiary whose claims against the Loan Parties are discharged with proceeds of any Letter of Credit.
(d) In the event that an Issuing 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 Lender pursuant to Section 3.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in U.S. Dollars and in same day immediately available funds. If the Administrative Agent so notifies, prior to 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 U.S. Dollars such Participant’s RL Percentage of the amount of such payment on such Business Day in same day 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 the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment.
(de) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(ef) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(fg) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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 Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Holdings or any of its Subsidiaries subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower Holdings or any Subsidiary subsidiary of the Borrower 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 Loan Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Abl Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than the Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) 1.13 or 13.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as finally determined by a court of competent jurisdiction in a final and non-appealable decisionjurisdiction).
(c) In the event that an the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.05(a), such the Issuing 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 such the Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (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 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 respective the Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds 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 an the Issuing 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 the Issuing 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 Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each the Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing 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 any Agent, any Participant, any other Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 an Issuing Lender of any a Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) 2.12 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, 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, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an any Issuing 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 Lender pursuant to Section 3.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment Unpaid Drawing in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 a.m. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such 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 the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans plus 2.00% for each day thereafter. The failure of any Participant to make available to an Issuing 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 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender (each such Lender, and each such RL Lender (in its capacity under this Section 3.042.03, a “Participant”) ), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor therefore or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13Sections 1.12, 2.15, 4.02(b3.02(b) or 13.04(b)15.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Percentages of the assignor and assignee LenderLender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no such Issuing Lender shall have any no obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued if taken or omitted in the absence of gross negligence or willful misconduct, as determined by it a court of competent jurisdiction, shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender Party 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)Lender.
(c) In the event that an any Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.04(a), such Issuing 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 Lender the amount of such Participant’s RL Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Administrative Agent at the Payment Office for the account of such Issuing Lender in Dollars such Participant’s RL 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 RL Percentage of the amount of such payment available to respective the Administrative Agent for the account of such Issuing Lender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Lender at the overnight Federal Funds 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 thereafterRate. The failure of any Participant to make available to an the Administrative Agent for the account of such Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an any Issuing 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 the Participants pursuant to clause (c) above, such Issuing Lender shall pay forward such payment to the Administrative Agent, which in turn shall distribute to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Each Issuing Lender shall, promptly after the issuance of, or amendment to, a Letter of Credit give the Administrative Agent and the Borrower written notice of such issuance or amendment, as the case may be, and such notice shall be accompanied by a copy of the issued Letter of Credit or amendment, as the case may be. Upon receipt of such notice, the request of any Administrative Agent shall promptly notify each Participant, each 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 Letter of Credit or amendment.
(f) Each Issuing Lender shall furnish deliver to such Participant copies the Administrative Agent, promptly on the first Business Day of any standby Letter each week, by facsimile transmission, the aggregate daily Stated Amount available to be drawn under the outstanding Letters of Credit issued by it and such other documentation as may reasonably Issuing Lender for the previous week. 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 requested by drawn under all outstanding Letters of Credit during such Participantcalendar month.
(fg) The obligations of the Participants to make payments to each the Administrative Agent for the account of the respective Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to 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, any Lender, any Issuing Lender, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower 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 an any Issuing Lender Bank of any Letter of Credit, such Issuing Lender Bank shall be deemed to have sold and transferred to each RL Lender, and Bank (each such RL Lender (Bank, in its capacity under this Section 3.042.03, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderBank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, 's Adjusted Percentage in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Adjusted Percentages of the Lenders Banks pursuant to Section 2.13, 2.15, 4.02(b) 1.13 or 13.04(b)13.04 or as a result of a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Adjusted Percentages of the assignor and assignee Lender, as the case may beBank.
(b) In determining whether to pay under any Letter of Credit, no such Issuing Lender Bank shall have any no obligation relative to the other Lenders 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. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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).have
(c) In the event that an any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender Bank pursuant to Section 3.05(a2.04(a), such Issuing Lender 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 such Issuing Lender Bank the amount of such Participant’s RL 's Adjusted Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective such Issuing Lender Bank in Dollars such Participant’s RL '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 RL Adjusted Percentage of the amount of such payment available to respective such Issuing LenderBank, such Participant agrees to pay to such Issuing LenderBank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender Bank at the overnight Federal Funds 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 thereafterRate. The failure of any Participant to make available to an such Issuing Lender Bank its RL Adjusted Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender Bank its RL 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 Lender Bank such other Participant’s RL 's Adjusted Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender Bank shall pay to each such Participant which has paid its RL Adjusted Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender Bank shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender 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 Issuing 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 (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
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 an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than the Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) 1.13 or 13.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued if taken or omitted in the absence of gross negligence or willful misconduct (as finally determined by it a court of competent jurisdiction), shall not create for such 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 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)Person.
(c) In the event that an the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.05(a), such the Issuing 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 such the Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars 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 respective the Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds 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 an the Issuing 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 the Issuing 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 Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each the Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender or CL Lender, and as the case may be (each such RL Lender (or CL Lender, as the case may be, with respect to any Letter of Credit, in its capacity under this Section 3.042.04, a “"L/C Participant”) "), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, in a percentage equal to such L/C Participant's RL Percentage or CL Percentage, as the extent of such Participant’s RL Percentagecase may be, in such Letter of Credit, each drawing or payment 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 respective 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 any change in the Revolving Loan Commitments or the RL Percentages of the respective RL Lenders or the Credit-Linked Commitments or the CL Percentages of the respective CL Lenders, in each case pursuant to Section 2.131.13, 2.15, 4.02(b) 1.14 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lenderor CL Percentages, as the case may be, of the respective Lenders.
(b) In determining whether to pay under any Letter of Credit, no the respective Issuing Lender shall have any no obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is if taken or omitted to be taken with in the absence of 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), shall not create for such Issuing Lender any resulting liability to the Borrower, any Subsidiary thereof or any Lender.
(ci) In the event that an any Issuing Lender makes any payment or disbursement under any RL Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing 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 Lender the amount of such L/C Participant’s 's RL Percentage of such unreimbursed payment the respective RL Unpaid Drawing in Dollars (or, to the extent that the respective RL Unpaid Drawing is in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof, as determined by the respective Issuing Lender on the date on which such payment or disbursement was made under the respective RL Letter of Credit), and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any L/C Participant required to fund a payment an RL Unpaid Drawing under a an RL 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 Lender, in Dollars (or, to the extent that the respective RL Unpaid Drawing is in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof), such L/C Participant’s 's RL Percentage of the amount of such payment on such Business Day in same day fundsfunds (or on the immediately succeeding Business Day to the extent that the respective notice is given by the Administrative Agent to any such L/C Participant on or after 12:00 Noon (New York time) on any such Business Day). If and to the extent that, for any reason, such L/C Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Issuing LenderLender as required above, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such the date the respective RL Unpaid Drawing occurred until the date such amount is paid to the Administrative Agent for the account of such Issuing Lender at the overnight Federal Funds Rate for (or, in the first three days and case of an RL Unpaid Drawing under an RL Letter of Credit denominated in an Alternative Currency, at the respective Issuing Lender's customary rate for interbank advances), 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 three 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 rate applicable on the amounts demanded of it at the same rates payable from time to Revolving Loans that are maintained as Base Rate Loans for each day thereaftertime by the Borrower on the respective RL Unpaid Drawings pursuant to Section 2.05(a). The failure of any L/C Participant to make available to an the Administrative Agent for the account of the respective Issuing Lender its RL Percentage of any payment under any RL Letter of Credit issued by such Issuing Lender it shall not relieve any other L/C Participant in the respective RL Letter of Credit of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its RL Percentage of any payment under any such RL Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent for the account of such Issuing Lender such other L/C Participant’s 's RL Percentage of any such payment.
(ii) In the event that any Issuing Lender makes any payment or disbursement under any CL Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant therein and the Deposit Bank of such failure, and each CL Lender hereby irrevocably authorizes the Deposit Bank (and the Deposit Bank hereby agrees) to reimburse such Issuing Lender for such amount in Dollars (or, to the extent that the respective CL Unpaid Drawing is in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof, as determined by the respective Issuing Lender on the date on which such payment or disbursement was made under the respective CL Letter of Credit) solely from such CL Lender's CL Percentage of the Credit-Linked Deposits on deposit with the Deposit Bank in the Credit-Linked Deposit Account.
(d) Whenever an any Issuing Lender receives a payment from the Borrower of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Issuing Lender any payments from the L/C Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay each such L/C Participant which has paid its RL Percentage thereof or CL Percentage thereof, as the case may be, in Dollars (or, to the extent that the respective payment is in respect of a Letter of Credit denominated in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof) and in same day funds, an amount equal to such L/C Participant’s 's share (based upon on the proportionate aggregate amount originally funded by such L/C Participant to the aggregate amount funded by all relevant L/C Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participationsparticipations (it being understood and agreed that any such payment to be made pursuant to this Section 2.04(d) to an L/C Participant which is a CL Lender shall be made by such Issuing Lender to the Administrative Agent for the account of such CL Lender and for deposit by the Deposit Bank in the Credit-Linked Deposit Account).
(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 Borrower 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 Issuing Lender 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 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) Each Issuing Lender shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by facsimile transmission, the aggregate daily Stated Amount available to be drawn under the outstanding Letters of Credit issued by such Issuing Lender for the previous week.
(g) The obligations of the L/C Participants to make payments to each the Administrative Agent for the account of the respective Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the 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 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 Collateral Agent, any Lender, any Issuing Lender, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower any Credit Party or any Subsidiary of the Borrower 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 an Issuing Lender a Letter of Credit Issuer of any Letter of Credit, such Issuing Lender Letter of Credit Issuer shall be deemed to have sold and transferred to each RL LenderBank, and each such RL Lender Bank (in its capacity under this Section 3.04each, a “"L/C Participant”") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Bank's RL Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment 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 L/C 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 Revolving Loan Commitments or RL Percentages of the Lenders XX Xxxxx pursuant to Section 2.13, 2.15, 4.02(b) 1.13 or 13.04(b12.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoto Letters of Credit, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04(a) to reflect the new RL Percentages of the assignor assigning and assignee Lender, as the case may beBanks.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender the respective Letter of Credit Issuer shall not have any obligation relative to the other Lenders 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. Any action taken or omitted to be taken by an Issuing Lender any Letter of Credit Issuer under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is if taken or omitted to be taken with in the absence of 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)jurisdiction, shall not create for such Letter of Credit Issuer any resulting liability.
(c) In the event that an Issuing Lender any 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 Lender Letter of Credit Issuer pursuant to Section 3.05(a2.03(a), such Issuing Lender Letter of Credit Issuer shall promptly notify the Administrative Agent, which and the Agent shall promptly notify each L/C Participant of such failure, and each such L/C Participant shall promptly and unconditionally pay to the Agent for the account of such Issuing Lender Letter of Credit Issuer, the amount of such L/C Participant’s 's RL Percentage of such unreimbursed payment in U.S. Dollars and in same day funds; provided, however, that no L/C Participant shall be obligated to pay to the Agent its RL 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 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, notifies any L/C Participant required to fund a payment under a Letter of Credit prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the Agent for the account of the respective Issuing Lender in Dollars Letter of Credit Issuer such 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 the Agent for the account of the respective Issuing LenderLetter of Credit Issuer, such L/C Participant agrees to pay to the Agent for the account of such Issuing LenderLetter 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 Agent for the account of such Issuing Lender Letter of Credit Issuer at the overnight Federal Funds 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 thereafterrate. The failure of any L/C Participant to make available to an Issuing Lender the Agent for the account of the respective Letter of Credit Issuer its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender it shall not relieve any other L/C Participant of its obligation hereunder to make available to the Agent for the account of such Issuing Lender Letter of Credit Issuer its RL 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 Agent for the account of such Issuing Lender Letter of Credit Issuer such other L/C Participant’s 's RL Percentage of any such payment.
(d) Whenever an Issuing Lender any 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 the L/C Participants pursuant to clause (c) above, such Issuing Lender Letter of Credit Issuer shall pay to the Agent and the Agent shall promptly pay to each such applicable L/C Participant which has paid its RL Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to such L/C Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) 's RL Percentage of the principal amount of such reimbursement obligation thereof and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants each respective L/C Participant to make payments to the Agent for the account of each Issuing Lender respective Letter of Credit Issuer with respect to Letters of Credit issued by it which such L/C Participant has a participation in 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, any ParticipantLetter of Credit Issuer, any Bank, any L/C Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein (including the Transaction) or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower 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 (Labtec Inc /Ma)
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by an any Issuing Lender Bank of any Letter of Credit, such Issuing Lender Bank shall be deemed to have sold and transferred to each RL LenderBank with a Revolving Loan Commitment, and other than such Issuing Bank (each such RL Lender (Bank, in its capacity under this Section 3.042.03, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderBank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL 's Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders Banks pursuant to Section 2.13Sections 1.13, 2.15, 4.02(b) 13.04 or 13.04(b)13.12, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Percentages of the assignor and assignee LenderBank or of all Banks with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the respective Issuing Lender Bank shall have any no obligation relative to the other Lenders 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. Any action taken or omitted to be taken by an any Issuing Lender 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 Issuing Lender Bank any resulting liability to the Borrower, the Parent, any other Credit Party, any Lender Subsidiary of the Parent 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)Bank.
(c) In the event that an any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender Bank pursuant to Section 3.05(a2.04(a), such Issuing Lender 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 such Issuing Lender Bank the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective such Issuing Lender Bank in Dollars such Participant’s RL 's Percentage of the amount of such payment on such Business Day (or, if notice is given after 12:00 Noon (New York 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 RL Percentage of the amount of such payment available to respective such Issuing LenderBank, such Participant agrees to pay to such Issuing LenderBank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender Bank at the overnight Federal Funds 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 thereafterRate. The failure of any Participant to make available to an such Issuing Lender Bank 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 Lender 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 Lender Bank such other Participant’s RL 's Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender Bank shall pay forward such payment to the Administrative Agent, which in turn shall distribute to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender Bank 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. In addition, each Issuing Bank (other than BTCo) shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by telecopier transmission, the aggregate daily Stated Amount available to be drawn under the outstanding Trade Letters of Credit issued by such Issuing Bank for the previous week. The Administrative Agent shall, within 10 days after the last day of each calendar month, deliver to each Participant a report setting forth for such period the aggregate daily Stated Amount available to be drawn under all outstanding Trade Letters of Credit during the preceding calendar month.
(f) The obligations of the Participants to make payments to each Issuing Lender 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, any Bank, any Issuing 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 (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 an the respective Issuing Lender Bank of any Letter of Credit, such Issuing Lender Bank shall be deemed to have sold and transferred to each RL LenderBank, and other than such Issuing Bank (each such RL Lender (Bank, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderBank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, 's Percentage in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders Banks pursuant to Section 2.13, 2.15, 4.02(b) 1.13 or 13.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee LenderBank, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the respective Issuing Lender Bank shall have any no obligation relative to the other Lenders 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. Any action taken or omitted to be taken by an any Issuing Lender 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 Issuing Lender Bank any resulting liability to the Borrower, any other Credit Party, any Lender Bank 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)Person.
(c) In the event that an any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender Bank pursuant to Section 3.05(a2.05(a), such Issuing Lender 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 such Issuing Lender Bank the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective such Issuing Lender Bank in Dollars such Participant’s RL '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 respective such Issuing LenderBank, such Participant agrees to pay to such Issuing LenderBank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender Bank at the overnight Federal Funds 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 an such Issuing Lender Bank 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 Lender 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 Lender Bank such other Participant’s RL 's Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender Bank shall pay to each such Participant which has paid its RL Percentage Per centage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender Bank shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation relating thereto as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than the Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) 2.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a), such the Issuing 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 such the Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (A.M. New York time) 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 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 respective the Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds 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 an the Issuing 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 the Issuing 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 Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each the Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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
or (v) the occurrence of any Default or Event of Default.
(g) All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Restatement Effective Date shall be subject to and governed by the terms and conditions hereof, it being understood that on the Restatement Effective Date, each RL Lender shall be deemed irrevocably and unconditionally to have purchased and received from the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Lender's RL Percentage, in each Existing Letter of Credit, 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 shall be deemed to have purchased a participation in the Existing Letters of Credit.
Appears in 1 contract
Samples: Credit Agreement (Infousa Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) 2.15 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York City time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such Participant’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 respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such 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 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 4.02(b) 2.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 to be taken with gross negligence negligence, bad faith or willful misconduct on the part of such Issuing Lender 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 an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York City time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such 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 respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its 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 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 Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.131.13, 2.15, 4.02(b) 1.15 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such 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 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 an the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.05(a), such the Issuing 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 such the Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars (or, in the case of any unreimbursed payment made in a Foreign Currency, of the Dollar Equivalent of such unreimbursed payment, as determined by the Issuing Lender on the date on which such unreimbursed payment was made by the Issuing Lender) and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars (or, in the case of any unreimbursed payment made in a Foreign Currency, of the Dollar Equivalent thereof) 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 respective the Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds Rate (or, in the case of amounts owned in a Foreign Currency, at the Issuing Lender's customary rate for interbank advances) for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an the Issuing 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 the Issuing 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 Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars (or, in the case of any payment received in a Foreign Currency, of the Dollar Equivalent thereof) and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender the Administrative Agent shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 (Manitowoc Co Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than such Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL 's Percentage, in such Letter of Credit, 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 any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.131.13, 2.151.14, 4.02(b) 3.02(b), 13.04 or 13.04(b13.12(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee LenderLender or of all Lenders, as the case may be.
(ba) In determining whether to pay under any Letter of Credit, no such Issuing Lender shall have any no obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender Borrower or any other Person Lender, unless such action is taken or omitted to be taken with was the result of 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)proceeding) of such Issuing Lender.
(cb) In the event that an any Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing 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 such Issuing Lender the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon 11:00 A.M. (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 such Issuing Lender in Dollars such Participant’s RL '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 respective such Issuing Lender, such Participant agrees to pay to such Issuing Lender, 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 Lender at the overnight Federal Funds 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 an such Issuing 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 Lender its RL 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 Lender such other Participant’s RL 's Percentage of any such payment.
(dc) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(ed) Upon the request of any Participant, each Issuing Lender the Administrative Agent shall furnish deliver to such Participant copies of any standby Letter Letters of Credit issued by it or modifications or amendments thereto and such other documentation as may be reasonably be requested by such Participant.
(fe) The obligations of the Participants to make payments to each Issuing 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, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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
