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 to each Revolving Lender (each such Revolving Lender, in its capacity under this Section 3.04, a “Participant”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased 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 substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 or 12.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 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 Participants therein other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). (c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 for the account of the respective Issuing Lender, the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8 (d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations. (e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant. (f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lender, any 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 110 150546217_8170136845_8
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 Revolving RL Lender (other than such Issuing Lender in its capacity (if any) as an RL Lender) and each such Revolving Lender, RL 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 Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 1.14 or 12.04(b14.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may berelevant Lenders.
(b) In determining whether to pay under any Letter of Credit, no the respective Issuing Lender shall not have any obligation relative to the Participants therein 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 an such Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such 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 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 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 the respective 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 the respective 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 the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each the respective 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 respective Participants to make payments to the Administrative Agent for the account of each 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such any Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction 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 (Nash Finch Co)
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 Revolving Lender (other than the Issuing Lender in its capacity (if any) as a Lender) and each such Revolving Lender, Lender (in its capacity under this Section 3.04SECTION 3.4, a “Participant”"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 RL Percentage 's Proportionate Share, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Aggregate Commitments or RL Percentages Proportionate Shares of the respective Lenders pursuant to Section 2.13, 2.15, 2.17 SECTION 2.9 or 12.04(b)SECTION 11.6, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 SECTION 3.4 to reflect the new RL Percentages Proportionate Shares 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 Participants therein 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 an the Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 for the account of the respective Issuing Lender, the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lender, any 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 110 150546217_8170136845_8
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender Bank of any Letter of Credit, such Issuing Lender Bank shall be deemed to have sold and transferred to each Revolving Lender (other than such Issuing Bank in its capacity (if any) as a Lender) and each such Revolving Lender, Lender (in its capacity under this Section 3.04SECTION 3.4, a “Participant”an "LC 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 LC Participant’s RL Percentage 's Proportionate Share, in such Letter of Credit, each substitute letter of credit, each drawing Drawing or payment made thereunder and the joint and several obligations of the respective Revolving Borrower Borrowers under this Credit Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages Proportionate Shares of the respective Lenders pursuant to Section 2.13, 2.15, 2.17 or 12.04(b)the terms of this Credit Agreement, it is hereby agreed that, with respect to all outstanding Letters Letter of Credit and Unpaid DrawingsOutstandings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 SECTION 3.4 to reflect the new RL Percentages Proportionate Shares 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 Bank shall have any obligation relative to the Participants therein 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 Bank under or in connection with any Letter of Credit issued by it shall not create for an such Issuing Lender Bank any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Lender Bank pursuant to Section 3.05(aSECTION 3.5(a), such Issuing Lender Bank shall promptly notify the Administrative Agent, which shall promptly notify each LC Participant of such failure, and each LC Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the respective Issuing Lender, Bank the amount of such LC Participant’s RL Percentage 's Proportionate Share of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew York time) on any Business Day, any LC Participant required to fund a payment under a Letter of Credit, such LC Participant shall make available to such Issuing Bank in Dollars such LC Participant's Proportionate Share of the Administrative Agent amount of such payment on such Business Day in same day funds. If and to the extent such LC Participant shall not have so made its Proportionate Share of the amount of such payment available to the Issuing Bank, such LC Participant agrees to pay to such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Issuing Bank at the overnight Federal Funds Rate for the account first 3 days and at the interest rate applicable to Revolving Loans for each day thereafter. The failure of any LC Participant to make available to an Issuing Bank its Proportionate Share of any payment under any Letter of Credit shall not relieve any other LC Participant of its obligation hereunder to make available to the respective Issuing Lender in Dollars 109 150546217_8170136845_8Bank its Proportionate Share of any payment under any Letter of Credit on the date required, as specified above, but no LC Participant shall be responsible for the failure of any other LC Participant to make available to an Issuing Bank such other LC Participant's Proportionate Share of any such payment.
(d) Whenever an Issuing Lender Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective LC Participants pursuant to clause CLAUSE (c) above, such the Issuing Lender Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such LC Participant which has paid its RL Percentage Proportionate Share thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such LC Participant’s 's share (based upon the proportionate aggregate amount originally funded by such LC Participant to the aggregate amount funded by all LC 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 LC Participant, each Issuing Lender Bank shall furnish to such LC Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such LC Participant.
(f) The obligations of the respective LC Participants to make payments to the Administrative Agent for the account of each any Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Credit Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(i) any lack of validity or enforceability of this Credit Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof of any Credit Party may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lenderany LC Participant, any Lender or any other Person, whether in connection with this Credit Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying 110 150546217_8170136845_8transaction between any Credit Party or any Subsidiary of any Credit Party and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) 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: Post Petition Credit Agreement (Metal Management 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 Revolving Lender, and each such Lender (each such Revolving 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 Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower Borrowers under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 1.12 or 12.04(b14.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 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 Issuing Lender shall have any obligation relative to the Participants therein 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 an such Issuing Lender any resulting liability to any Revolving either Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower Borrowers 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. a.m. (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the 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 Base Rate, as in effect from time to time, plus the Applicable Margin as in effect from time to time minus 1% for each day thereafter. The failure of any Participant to make available to an Issuing Lender its Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Parent or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between the Parent or any Subsidiary of the Parent and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender a Letter of Credit Issuer of any Letter of Credit (and on the Fifth Restatement Effective Date, in the case of Existing Letters of Credit), such Issuing Lender Letter of Credit Issuer shall be deemed to have sold and transferred to each Revolving other RL Lender (each such Revolving other 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 LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each, a “participation”), to the extent of such Participant’s RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, and any security therefor that remains in effect after the respective Original Effective Date, or guaranty pertaining thereto (although Letter of Credit Fees (but not Fronting will be paid directly to the Administrative Agent for the ratable account of the Participants as provided in Section 3.01(c) and the Participants shall have no right to receive any portion of any Facing Fees) payable 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 2.131.14, 2.15, 2.17 1.16 or 12.04(b)12.04 or the termination of a Commitment of a Non-Continuing Lender, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Percentages of the assignor and assignee LenderRL Lender and of all RL Lenders or all Continuing Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender the Letter of Credit Issuer issuing same shall have any no obligation relative to the Participants therein other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 it, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for an Issuing Lender such Letter of Credit Issuer any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)liability.
(c) In the event that any Issuing Lender Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Lender 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 shall promptly notify Agent and each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the respective Issuing Lendersuch Letter of Credit Issuer, the amount of such Participant’s RL Percentage of such unreimbursed payment 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 Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If ; provided, however, that no Participant shall be obligated to pay to the Administrative Agent for the account of such Letter of Credit Issuer its RL Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer (as determined by a court of competent jurisdiction in a final and non-appealable decision). If such Letter of Credit Issuer so notifies, prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent for the account of such Letter of Credit Issuer such Participant’s RL Percentage of the respective Issuing Lender amount of such payment on such Business Day in Dollars 109 150546217_8170136845_8same 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 for the account of such Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any Participant to make available to the Administrative Agent for the account of the applicable Letter of Credit Issuer its RL Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such 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 such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender any Letter of Credit Issuer receives a payment in respect of a an unpaid reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender Letter of Credit Issuer any payments from the respective Participants pursuant to the preceding 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 RL Percentage thereofof such reimbursement obligation, in U.S. Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender a 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 (except as expressly provided in Section 2.03(c)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing any Letter of Credit Issuer, any Lender, any 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 110 150546217_8170136845_8transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under 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;
(v) the occurrence of any Default or Event of Default; or
(vi) the failure of any condition precedent set forth in Section 5 hereof to have been satisfied at the time of the issuance of any Letter of Credit, unless the applicable Letter of Credit Issuer shall have received a notice in writing to such effect from the Required Lenders pursuant to Section 2.01(b)(iv) hereof prior to the issuance of such Letter of Credit.
Appears in 1 contract
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 Bank with a Revolving Lender Loan Commitment, other than such Issuing Bank (each such Revolving LenderBank, 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 's Adjusted RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or Adjusted RL Percentages of the Lenders Banks pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new Adjusted 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 Participants therein other Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 an such Issuing Lender Bank any resulting liability to any Revolving the Borrower, any other Credit Party, any Participant Bank or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Person.
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the respective such Issuing Lender, Bank the amount of such Participant’s 's Adjusted RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to such Issuing Bank in Dollars such Participant's Adjusted RL Percentage of the Administrative Agent amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Adjusted RL Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate for the account first three days and at the interest rate applicable to Revolving Loans maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to such Issuing Bank its Adjusted RL Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Adjusted RL Percentage of any Letter of Credit on the respective 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 in Dollars 109 150546217_8170136845_8Bank such other Participant's Adjusted RL Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its Adjusted RL Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (except as otherwise expressly provided in the last sentence of Section 2.04(b)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof of its Subsidiaries or Joint Ventures 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between the Borrower or any Subsidiary or Joint Venture 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 (Doubletree Corp)
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 Bank with a Revolving Lender Loan Commitment, other than such Issuing Bank (each such Revolving LenderBank, 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 's Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 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 Participants therein other Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 an such Issuing Lender Bank any resulting liability to any Revolving Borrower, any other Credit Party, any Participant the Borrower or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Bank.
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such the 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 the respective such Issuing Lender, Bank the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent at the Payment Office for the account of such Issuing Bank in Dollars such Participant's Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the Agent for the account of such Issuing Bank, such Participant agrees to pay to the respective Agent for the account of such Issuing Lender in Dollars 109 150546217_8170136845_8Bank, 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 Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to the Agent for the account of such Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Agent for the account of such Issuing Bank its Percentage of 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 Agent for the account of such Issuing Bank such other Participant's Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender Bank any payments from the respective Participants pursuant to clause (c) above, such 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Moovies 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 Lender with a Revolving Loan Commitment, other than such Issuing Lender (each such Revolving 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 's Proportionate Share in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect theretothereto (other than the Facing Fees, in which shall be for the account of the respective Letter of Credit Fees (but not Fronting Fees) payable with respect theretoIssuing Lender), and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages Proportionate Shares of the Lenders pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b)12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Percentages Proportionate Shares of the assignor and assignee LenderLender or of all Lenders with Revolving Loan Commitments, 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 Participants therein 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 Issuing Lender any resulting liability to the Borrower or any Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.04(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 for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage 's Proportionate Share of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew York City time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall use its best efforts to make available to such Issuing Lender such Participant's Proportionate Share of the Administrative Agent amount of such payment on such Business Day in Dollars in same day funds or in any case, no later than 3:00 P.M. New York City time on the next succeeding Business Day. If and to the extent such Participant shall not have so made its Proportionate Share of the amount of such payment available to such Issuing Lender on the date of payment, 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. The failure of any Participant to make available to such Issuing Lender its Proportionate Share of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Proportionate Share of any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the account failure of the respective any other Participant to make available to such Issuing Lender in Dollars 109 150546217_8170136845_8such other Participant's Proportionate Share of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL Percentage Proportionate Share thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 participationspayment pursuant to clause (c) above.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Hvide Marine Inc)
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 Revolving Credit Lender, other than such Issuing Lender (each such Revolving Credit 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 Revolving Credit Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Revolving Credit Percentages of the Lenders pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Revolving Credit Percentages of the assignor and assignee Lender, 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 and, except as provided in the proviso of the immediately succeeding sentence, each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Revolving Credit Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 Base Rate Loans for each day thereafter. The failure of any Participant to make available to the respective Issuing Lender its Revolving Credit Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Revolving Credit Percentage of 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 Revolving Credit Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL Revolving Credit Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations; provided, however, that if such Issuing Lender shall have received any such payment of a reimbursement obligation on a day that is not a Business Day or on or after 12:00 Noon (New York time) on any Business Day, such Issuing Lender shall not be obliged to make any payment to any Participant in respect thereof until the immediately succeeding Business Day.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such any Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction 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 Bank of any Letter of Credit, such Issuing Lender Bank shall be deemed to have sold and transferred to each Revolving Lender (other than such Issuing Bank in its capacity (if any) as a Revolving Lender) and each such Revolving Lender, Lender (in its capacity under this Section 3.04SECTION 3.4, a “Participant”an "LC 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 LC Participant’s RL Percentage 's Proportionate Share, in such Letter of Credit, each substitute letter of credit, each drawing Drawing or payment made thereunder and the joint and several obligations of the respective Revolving Borrower Borrowers under this Credit Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the aggregate Revolving Loan Commitments or RL Percentages Proportionate Shares of the respective Revolving Lenders pursuant to Section 2.13, 2.15, 2.17 or 12.04(b)the terms of this Credit Agreement, it is hereby agreed that, with respect to all outstanding Letters Letter of Credit and Unpaid DrawingsObligations, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 SECTION 3.4 to reflect the new RL Percentages Proportionate Shares 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 Bank shall have any obligation relative to the Participants therein 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 Bank under or in connection with any Letter of Credit issued by it shall not create for an such Issuing Lender Bank any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a)it, such Issuing Lender Bank shall promptly notify the Administrative Agent, which shall promptly notify each LC Participant of such failure, and each LC Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the respective such Issuing Lender, Bank the amount of such LC Participant’s RL Percentage 's Proportionate Share of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) United States dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew York time) on any Business Day, any LC Participant required to fund a payment under a Letter of Credit, such LC Participant shall make available to such Issuing Bank in United States dollars such LC Participant's Proportionate Share of the Administrative Agent amount of such payment on such Business Day in same day funds. If and to the extent such LC Participant shall not have so made its Proportionate Share of the amount of such payment available to the Issuing Bank, such LC Participant agrees to pay to such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate for the account first 3 days and at the interest rate applicable to Revolving Loans for each day thereafter. The failure of any LC Participant to make available to an Issuing Bank its Proportionate Share of any payment under any Letter of Credit shall not relieve any other LC Participant of its obligation hereunder to make available to such Issuing Bank its Proportionate Share of any payment under any Letter of Credit on the respective date required, as specified above, but no LC Participant shall be responsible for the failure of any other LC Participant to make available to such Issuing Lender in Dollars 109 150546217_8170136845_8Bank such other LC Participant's Proportionate Share of any such payment.
(d) Whenever an Issuing Lender Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective LC Participants pursuant to clause CLAUSE (c) above, such Issuing Lender Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such LC Participant which has paid its RL Percentage Proportionate Share thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) United States dollars and in same day funds, an amount equal to such LC Participant’s 's share (based upon the proportionate aggregate amount originally funded by such LC Participant to the aggregate amount funded by all LC 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 LC Participant, each Issuing Lender Bank shall furnish to such LC Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such LC Participant.
(f) The obligations of the respective LC Participants to make payments to the Administrative Agent for the account of each any Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Credit Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(i) any lack of validity or enforceability of this Credit Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof of any Credit Party may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lenderany LC Participant, any Lender or any other Person, whether in connection with this Credit Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying 110 150546217_8170136845_8transaction between any Credit Party or any Subsidiary of any Credit Party and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) 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 of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving RL Lender (other than such Issuing Lender in its capacity (if any) as an RL Lender) and each such Revolving Lender, RL 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 Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 1.13 or 12.04(b13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 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 obligation relative to the Participants therein 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 an such Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such 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 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 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 the respective 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 the respective 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 the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 respective 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 respective Participants to make payments to the Administrative Agent for the account of each 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such any Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction 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 (Nash Finch Co)
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 Revolving RL Lender, other than the Issuing Lender (each such Revolving RL 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 Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 2.13 or 12.04(b)12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 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 Participants therein 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 an the Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Party, any Participant Lender or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Person.
(c) In the event that any the Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such 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 the Administrative Agent for the account of the respective Issuing Lender, Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such 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 Issuing Lender, such Participant agrees to pay to 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 the Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to the Issuing Lender its RL Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Issuing Lender its RL Percentage of 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 Issuing Lender such other Participant's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such the Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction 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, such Issuing Lender Letter of Credit Issuer shall be deemed to have sold and transferred to each Revolving Lender (each such Revolving other RL Lender, in its capacity under this Section 3.04, a “Participant”), and each such Participant RL Lender (each, an “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 L/C Participant’s RL Percentage Percentage, in such Letter of Credit, each substitute letter Letter of creditCredit, each drawing made thereunder and the obligations of the respective Revolving Borrower Borrowers under this Agreement with respect thereto, in the respective thereto (although Letter of Credit Fees (but not Fronting Feesshall be payable directly to the Administrative Agent for the account of the RL Lenders as provided in Section 4.1(b) payable and the L/C Participants shall have no right to receive any portion of any Facing Fees with respect thereto, to 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 RL Lenders pursuant to Section 2.13, 2.15, 2.17 2.13 or 12.04(b13.7(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 3.3 to reflect the new RL Percentages of the assignor assigning and assignee LenderLender or of all RL Lenders, 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 L/C Participants therein 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 Letter of Credit Issuer any resulting liability to any Borrower or any Lender.
(c) In the event that any Issuing Lender Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Lender the Letter of Credit Issuer pursuant to Section 3.05(a3.4(a), such Issuing Lender Letter of Credit Issuer shall promptly notify the Administrative Agent, which and the Administrative Agent shall promptly notify each L/C Participant of such failure, and each such L/C Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the respective Issuing Lendersuch Letter of Credit Issuer in U.S. Dollars and in same day funds, the amount of such L/C Participant’s RL Percentage of such unreimbursed payment (in Dollars (or to the extent case of a payment under a Letter of Credit denominated in a currency other than U.S. Dollars, taking the Dollar Equivalent of the amount of the respective Unpaid Drawing is, in accordance with Section 3.05(apayment on the date such payment is made), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local Time) on notifies any Business Day, any L/C Participant required to fund a payment under a Letter of CreditCredit prior to 11:00 A.M. (Philadelphia time) on any Business Day, such L/C Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Letter of Credit Issuer such L/C Participant’s RL Percentage of the amount of such payment on such Business Day in same day funds (and, to the extent such notice is given after 11:00 A.M. (Philadelphia time) on any Business Day, such L/C Participant shall make such payment on the immediately following Business Day). 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 Administrative Agent for the account of the respective Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent for the account of such Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any L/C Participant to make available to the Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8Letter of Credit Issuer its RL Percentage of any payment under any Letter of Credit issued by it shall not relieve any other L/C Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Letter of Credit Issuer its applicable 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 Administrative Agent for the account of such Letter of Credit Issuer such other L/C Participant’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 the Administrative Agent has received for the account of such Issuing Lender Letter of Credit Issuer any payments from the respective L/C 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 L/C Participant which has paid its RL Percentage thereof, in U.S. Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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) 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 Each Letter of any ParticipantCredit Issuer shall, promptly after each Issuing Lender shall furnish to such Participant copies of any issuance of, or amendment or modification to, a Letter of Credit issued by it it, give the Administrative Agent, each L/C Participant and the Borrowers written notice of the issuance of, or amendment or modification to, such other documentation as may reasonably be requested by such ParticipantLetter of Credit.
(f) The obligations of the respective L/C Participants to make payments to the Administrative Agent for the account of each Issuing Lender 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party the Partnership or any Subsidiary thereof 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, such Issuing any Letter of Credit Issuer, any Lender, any 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 110 150546217_8170136845_8transaction between the Partnership or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by 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 Lender with a General Revolving Lender (each such Revolving Lender, in its capacity under this Section 3.04, a “Participant”)Commitment, and each such Participant Lender (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 Percentage Lender's General Revolving Facility Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and thereunder, the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective thereto (although Letter of Credit Fees (but not Fronting Feesshall be payable directly to the Administrative Agent for the account of the Lenders as provided in section 4.1(b) payable with respect and the Participants shall have no right to receive any portion of any fees of the nature contemplated by section 4.1(c)), the obligations of any 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, 2.17 or 12.04(bsection 12.4(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 section 3.4 to reflect the new RL General Revolving Facility 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 Participants therein 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 an Issuing Lender such Letter of Credit Issuer any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)liability.
(c) In the event that any Issuing Lender a Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the respective Revolving 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 the respective Issuing Lendersuch Letter of Credit Issuer, the amount of such Participant’s RL 's General Revolving Facility Percentage of such unreimbursed payment 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 Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds, PROVIDED, HOWEVER, that no Participant shall be obligated to pay to the Administrative Agent its General Revolving Facility Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 Administrative Agent for the account of the respective Issuing Lender relevant Letter of Credit Issuer such Participant's General Revolving Facility Percentage of the amount of such payment on such Business Day in Dollars 109 150546217_8170136845_8same day funds. If and to the extent such Participant shall not have so made its General Revolving Facility Percentage of the amount of such payment available to the 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 Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Letter of Credit Issuer at the Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of the relevant Letter of Credit Issuer its General Revolving Facility Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Letter of Credit Issuer its General Revolving Facility Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Letter of Credit Issuer such other Participant's General Revolving Facility 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 the Administrative Agent has received for the account of such Issuing Lender Letter of Credit Issuer any payments from the respective 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 has paid its RL General Revolving Facility Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 General Revolving Facility 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective 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 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, set-off, off defense or other right which any Revolving Borrower, any other Credit Party the Borrower (or any Subsidiary thereof 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, such Issuing any Letter of Credit Issuer, any Lender, 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 110 150546217_8170136845_8transaction between the Borrower (or any Subsidiary) and the beneficiary named in any such Letter of Credit), other than any claim which the Borrower (or any Subsidiary which is the account party with respect to a Letter of Credit) may have against any applicable Letter of Credit Issuer for gross negligence or wilful misconduct of such Letter of Credit Issuer in making payment under any applicable Letter of Credit;
(iii) any draft, certificate or other document presented under 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 General Revolving Facility Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Letter of Credit Issuer in performing its respective duties in any way related to or arising out of its issuance of Letters of Credit, PROVIDED that no Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the Letter of Credit Issuer's gross negligence or willful misconduct.
Appears in 1 contract
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 Lender with a Revolving Lender (each such Revolving Lender, in its capacity under this Section 3.04, a “Participant”)Commitment, and each such Participant Lender (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 Percentage Lender's Revolving Facility Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and thereunder, the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective thereto (although Letter of Credit Fees (but not Fronting Feesshall be payable directly to the Administrative Agent for the account of the Lenders as provided in section 4.1(b) payable with respect and the Participants shall have no right to receive any portion of any fees of the nature contemplated by section 4.1(c)), the obligations of any Letter of Credit Obligor under any Letter of Credit Documents pertaining thereto, and any security therefor for, or guaranty pertaining 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, 2.17 or 12.04(bsection 12.4(c), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 section 3.4 to reflect the new RL Revolving Facility 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 Participants therein 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 an Issuing Lender such Letter of Credit Issuer any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)liability.
(c) In the event that any Issuing Lender a Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed (or caused any applicable Letter of Credit Obligor 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 the respective Issuing Lendersuch Letter of Credit Issuer, the amount of such Participant’s RL 's Revolving Facility Percentage of such unreimbursed payment in U.S. Dollars (or to the extent Administrative Agent having determined in the respective Unpaid Drawing is, case of any payment by a Letter of Credit Issuer made in accordance with Section 3.05(a), to be reimbursed by an Alternative Currency the respective Revolving Borrower equivalent thereof in a Primary Alternate Currency, the respective Primary Alternate CurrencyDollars) and in same day funds, PROVIDED, HOWEVER, that no Participant shall be obligated to pay to the Administrative Agent its Revolving Facility Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 Administrative Agent for the account of the respective Issuing Lender relevant Letter of Credit Issuer such Participant's Revolving Facility Percentage of the amount of such payment on such Business Day in Dollars 109 150546217_8170136845_8same day funds. If and to the extent such Participant shall not have so made its Revolving Facility Percentage of the amount of such payment available to the 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 Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Letter of Credit Issuer at the Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of the relevant Letter of Credit Issuer its Revolving Facility Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Letter of Credit Issuer its Revolving Facility Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Letter of Credit Issuer such other Participant's Revolving Facility 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 the Administrative Agent has received for the account of such Issuing Lender Letter of Credit Issuer any payments from the respective 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 has paid its RL Revolving Facility Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Revolving Facility 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective 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 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, set-off, off defense or other right which any Revolving Borrower, the Borrower (or any other Letter of Credit Party or any Subsidiary thereof Obligor) may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person person for whom any such transferee may be acting), the Administrative Agent, such Issuing any Letter of Credit Issuer, any Lender, 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 110 150546217_8170136845_836 41 transaction between the Borrower (or any other Letter of Credit Obligor) and the beneficiary named in any such Letter of Credit), other than any claim which the Borrower (or any other Letter of Credit Obligor which is the account party with respect to a Letter of Credit) may have against any applicable Letter of Credit Issuer for gross negligence or wilful misconduct of such Letter of Credit Issuer in making payment under any applicable Letter of Credit;
(iii) any draft, certificate or other document presented under 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 Revolving Facility Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Letter of Credit Issuer in performing its respective duties in any way related to or arising out of its issuance of Letters of Credit, PROVIDED that no Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the Letter of Credit Issuer's gross negligence or willful misconduct.
Appears in 1 contract
Samples: Credit Agreement (Om Group Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Lender with a Revolving Loan Commitment, other than such Issuing Lender (each such Revolving 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 Revolving Loan Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining theretothereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Participants as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees). Upon any change in the respective Revolving Loan Commitments or RL Revolving Loan Percentages of the Lenders pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b)13.04, it is hereby agreed that, with respect to all such outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Revolving Loan Percentages of the assignor and assignee Lender, as the case may beLender or of all Lenders with respective Revolving Loan Commitments.
(b) In determining whether to pay under any Letter of Credit, no such Issuing Lender shall have any no obligation relative to the Participants therein 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 Issuing Lender any resulting liability to the Borrower or any Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.04(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 for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Revolving Loan Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent for the account of the respective such Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s Revolving 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 Revolving Loan Percentage of the amount of such payment available to such 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. The failure of any Participant to make available to such Issuing Lender its Revolving Loan Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Revolving Loan Percentage of 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 Revolving Loan Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL Revolving Loan Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such any Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender Bank of any Letter of Credit, such Issuing Lender Bank shall be deemed to have sold and transferred to each Bank with a Revolving Lender Loan Commitment, other than such Issuing Bank (each such Revolving LenderBank, 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 substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 1.13 or 12.04(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, 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 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 such Issuing Lender Bank shall have any no obligation relative to the Participants therein other Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, 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 shall not create for an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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)jurisdiction, shall not create for such Issuing Bank any resulting liability to any Credit Party or any Bank.
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective such Issuing Lender, Bank the amount of such Participant’s RL 's Adjusted Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to such Issuing Bank in Dollars such Participant's Adjusted Percentage of the Administrative Agent amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Adjusted Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to such Issuing Bank its Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Adjusted Percentage of any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the account failure of the respective any other Participant to make available to such Issuing Lender in Dollars 109 150546217_8170136845_8Bank such other Participant's Adjusted Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender Bank shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each such Participant which has paid its RL Adjusted Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such any Issuing LenderBank, any Lender 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 110 150546217_8170136845_8transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender, and each such Lender (each such Revolving 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 Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower Borrowers under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 2.13 or 12.04(b13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 2:00 P.M. (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such 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 Effective Rate for the first three days and at the interest rate applicable to Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to 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 the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, 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 respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lender, any 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 110 150546217_8170136845_8
Appears in 1 contract
Samples: Abl Credit Agreement (J.Jill, 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 Revolving Lender (each such Revolving Lender, in its capacity under this Section 3.04, a “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, to the extent of such L/C Participant’s RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 2.14 or 12.04(b)13.4, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 3.4 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Loan Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a3.5(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant of such failure, and each L/C Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such L/C Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew York City time) on any Business Day, any L/C Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such L/C Participant’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 respective Issuing Lender, such L/C 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 Rate for the first three (3) days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any L/C Participant to make available to an Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other L/C Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to such Issuing Lender such other L/C Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective L/C Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such L/C Participant which has paid its RL Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 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 the request of any L/C Participant, each Issuing Lender shall furnish to such L/C Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such L/C Participant.
(f) The obligations of the respective L/C Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(iA) any lack of validity or enforceability of this Agreement or any of the other Credit Loan Documents; ;
(iiB) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party Holdings or any Subsidiary thereof 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, such Issuing Lenderany L/C Participant, any 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 110 150546217_8170136845_8transaction between Holdings or any Subsidiary of Holdings and the beneficiary named in any such Letter of Credit);
(C) 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;
(D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(E) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Amendment No. 3 (Informatica Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender, other than such Issuing Lender (each such Revolving 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 Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and Acceptances created thereunder and the obligations of the respective Revolving Borrower Borrowers under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 1.13 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit Credit, Acceptances created thereunder and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 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.
(b) In determining whether to pay or create an Acceptance under any Letter of Credit, no such Issuing Lender shall have any no obligation relative to the Participants therein 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 Borrowers or any Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it or any Acceptance created thereunder and the respective Revolving Borrower Borrowers 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew York time) on any Business Day, any Participant required to fund a payment under a Letter of CreditCredit or an Acceptance created thereunder, such Participant shall make available to the Administrative Agent for the account of the respective such Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s Percentage of the amount of such payment (using the Dollar Equivalent thereof in the case of any such payment in respect of a Letter of Credit denominated in an Alternate Currency, determined on the date of such payment) on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to such Issuing 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 maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to such Issuing Lender its Percentage of any payment under any Letter of Credit or Acceptance shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Percentage of any payment with respect to any Letter of Credit or Acceptance created thereunder on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each the relevant Issuing Lender shall furnish deliver to such Participant copies of any Letter of Credit issued by it and such other documentation as may be reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit and Acceptances issued by it thereunder shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (the respective Issuing Lender’s only obligation being to confirm that any documents required to be delivered under such Letter of Credit appeared to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrowers or any Subsidiary thereof of their Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), any holder of an Acceptance, the Administrative Agent, such Issuing Lenderany Participant, any Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, any Acceptance, the transactions contemplated herein or any unrelated transactions (including any underlying 110 150546217_8170136845_8transaction between any Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by 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 Revolving Lender (each such Revolving Lender, in its capacity under this Section 3.04, with a “Participant”)Commitment, and each such Participant Lender (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 Percentage Lender's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and thereunder, the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective thereto (although Letter of Credit Fees (but not Fronting Feesshall be payable directly to the Administrative Agent for the account of the Lenders as provided in section 4.1(b) payable with respect and the Participants shall have no right to receive any portion of any fees of the nature contemplated by section 4.1(c)), the obligations of any 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, 2.17 or 12.04(bsection 12.4(c), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 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 Participants therein 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 an Issuing Lender such Letter of Credit Issuer any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)liability.
(c) In the event that any Issuing Lender a Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the respective Revolving 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 the respective Issuing Lender, the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lender, any 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 110 150546217_8170136845_8promptly
Appears in 1 contract
Samples: Credit Agreement (Royal Appliance Manufacturing Co)
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 Bank with a Revolving Lender Loan Commitment, other than such Issuing Bank (each such Revolving LenderBank, 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 's Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 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 respective Participants therein other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 an such Issuing Lender Bank any resulting liability to any Revolving the Borrower, any other Credit PartyBank, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Person.
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such the 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 the respective such Issuing Lender, Bank the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent at the Payment Office of the Administrative Agent for the account of the respective such Issuing Lender Bank in Dollars 109 150546217_8170136845_8such Participant's Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the Administrative Agent for the account of such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank at the overnight federal funds rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank its Percentage of any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Issuing Bank such other Participant's Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender Bank any payments from the respective Participants pursuant to clause (c) above, such 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Ubiquitel Inc)
Letter of Credit Participations. (a) 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 Lender having a Revolving Loan Commitment, and each such Lender (each such Revolving Lender, in its capacity under this Section 3.043.4, 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 Pro Rata Share of the aggregate amount of the Revolving Loan Commitments, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower Company under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages Pro Rata Share of the Lenders pursuant to Section 2.13, 2.15, 2.17 2.10 or 12.04(b)10.1B, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 3.4 to reflect the new RL Percentages Pro Rata Share of the aggregate amount of the Revolving Loan Commitments of the assignor and assignee Lender, as the case may be.
(b) B. In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the Participants therein 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 an such Issuing Lender any resulting liability to any Revolving BorrowerCompany, any other Credit Loan Party, any Participant Lender or any other Lender 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) C. In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower Company shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a)3.5A, 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 for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage Pro Rata Share of such unreimbursed payment in Dollars (or which amount, in the case of a drawing under a Letter of Credit which is denominated in a currency other than Dollars, shall be calculated by reference to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currencyapplicable Exchange Rate) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8(which amount, in the case of a drawing under a Letter of Credit which is denominated in a currency other than Dollars, shall be calculated by reference to the applicable Exchange Rate) such Participant’s Pro Rata Share of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Pro Rata Share 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 Pro Rata Share 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 Pro Rata Share of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s Pro Rata Share of any such payment.
(d) D. Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) Section 3.4C above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL Percentage Pro Rata Share thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) 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) F. The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party Company or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between Company or any Subsidiary of Company and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Potential Event of Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Alliance HealthCare Services, Inc)
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 Revolving RL Lender (each other than such Revolving Lender, Letter of Credit Issuer in its capacity under this Section 3.04capacity, a “Participant”if any, as an RL Lender), and each such Participant RL Lender (each, a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective thereto (although Letter of Credit Fees (but not Fronting Feesshall be payable directly to the Administrative Agent for the account of the RL Lenders as provided in Section 3.01(b) payable and the Participants shall have no right to receive any portion of any Facing Fees with respect thereto, to such Letters of Credit) and any security therefor therefore 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, 2.17 1.13 or 12.04(b13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 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 Letter of Credit Issuer shall have any obligation relative to the Participants therein 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 an Issuing Lender such Letter of Credit Issuer any resulting liability to any Revolving the Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the respective Issuing Lendersuch Letter of Credit Issuer, the amount of such Participant’s 's RL Percentage of such unreimbursed payment 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 Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 Letter of Credit Issuer such Participant's RL Percentage of the amount of such payment on such Business Day in same day funds (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 RL Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent 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 thereafter. The failure of any Participant to make available to the Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8Letter of Credit Issuer its RL Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Letter of Credit Issuer its applicable 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 Letter of Credit Issuer such other Participant'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 the Administrative Agent has received for the account of such Issuing Lender Letter of Credit Issuer any payments from the respective 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 RL Percentage thereof, in U.S. Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) '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 Each Letter of any ParticipantCredit Issuer shall, promptly after each Issuing Lender shall furnish to such Participant copies of any issuance of, or amendment or modification to, a standby Letter of Credit issued by it it, give the Administrative Agent and the Borrower written notice of the issuance of, or amendment or modification to, such other documentation as may reasonably standby Letter of Credit, which notice shall be requested accompanied by a copy of such Participantissuance, amendment or modification. Promptly upon receipt of each such notice, the Administrative Agent shall notify each Participant of such issuance, amendment or modification and should any Participant so request, the Administrative Agent shall provide such Participant with copies of any such issuance, amendment or modification.
(f) Each Letter of Credit Issuer (other than BTCo) shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by facsimile transmission, the daily aggregate Stated Amount available to be drawn under the outstanding Letters of Credit issued by such Letter of Credit Issuer for the previous week.
(g) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such Issuing any Letter of Credit Issuer, any Lender, any 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 110 150546217_8170136845_8transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under 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 (Symons Corp)
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 Revolving Lender with a Commitment, other than such Issuing Lender (each such Revolving Lender, in its capacity under this Section 3.043.03, 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 Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 Sections 2.12 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 3.03 to reflect the new RL Percentages of the assignor and assignee LenderLender or of all Lenders with Commitments, 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Party or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a3.04(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 the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent at the Payment Office for the account of the respective such Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the Administrative Agent for the account of such Issuing 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. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Lender its Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its Percentage of 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 Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received (for the account of any such Issuing Lender Lender) any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each such Participant which has paid its RL Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Each Issuing Lender shall furnish to such Participant copies of any shall, promptly after the issuance of, or amendment to, a Letter of Credit issued by it give the Administrative Agent and the Borrower written notice of such issuance or amendment, as the case may be, and such other documentation notice shall be accompanied by a copy of the issued Letter of Credit or amendment, as the case may reasonably be requested by be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Participant, in writing, of such issuance or amendment and in the event a Participant shall so request, the Administrative Agent shall furnish such Participant with a copy of such issuance or amendment.
(f) 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. Upon request, the Administrative Agent shall, within 10 days after the last Business Day of each calendar month, deliver to each Participant a report setting forth for such preceding calendar month the aggregate daily Stated Amount available to be drawn under all outstanding Letters of Credit during such calendar month.
(g) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such any Lender, any Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender a Letter of Credit Issuer of any Letter of Credit (and on the Third Restatement Effective Date, in the case of Existing Letters of Credit), such Issuing Lender Letter of Credit Issuer shall be deemed to have sold and transferred to each Revolving other Lender (each such Revolving other 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 LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each, a "participation"), to the extent of such Participant’s RL Percentage 's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, and any security therefor that remains in effect after the respective Original Effective Date, or guaranty pertaining thereto (although Letter of Credit Fees (but not Fronting will be paid directly to the Administrative Agent for the ratable account of the Participants as provided in Section 3.01(c) and the Participants shall have no right to receive any portion of any Facing Fees) payable 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 2.131.14 or 12.04, 2.15, 2.17 the termination of a Commitment of a Non-Continuing Lender or 12.04(b)the occurrence of any Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Percentages of the assignor and assignee Lender, of all Lenders, all Continuing Lenders or all Non-Defaulting Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender the Letter of Credit Issuer issuing same shall have any no obligation relative to the Participants therein other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 it, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for an Issuing Lender such Letter of Credit Issuer any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)liability.
(c) In the event that any Issuing Lender Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Lender 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 shall promptly notify Agent and each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the respective Issuing Lendersuch Letter of Credit Issuer, the amount of such Participant’s RL 's Percentage of such unreimbursed payment 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 Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If ; provided, however, that no Participant shall be obligated to pay to the Administrative Agent for the account of such Letter of Credit Issuer its Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer (as determined by a court of competent jurisdiction in a final and non-appealable decision). If such Letter of Credit Issuer so notifies, prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent for the account of such Letter of Credit Issuer such Participant's Percentage of the respective Issuing Lender amount of such payment on such Business Day in Dollars 109 150546217_8170136845_8same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the Administrative Agent for the account of such Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any Participant to make available to the Administrative Agent for the account of the applicable Letter of Credit Issuer its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Letter of Credit Issuer its Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent such other Participant's Percentage of any such payment.
(d) Whenever an Issuing Lender any Letter of Credit Issuer receives a payment in respect of a an unpaid reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender Letter of Credit Issuer any payments from the respective Participants pursuant to the preceding 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 RL Percentage thereofof such reimbursement obligation, in U.S. Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender the Letter of Credit Issuers 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 (except as expressly provided in Section 2.03(c)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing any Letter of Credit Issuer, any Lender, any 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 110 150546217_8170136845_8transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under 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;
(v) the occurrence of any Default or Event of Default; or
(vi) the failure of any condition precedent set forth in Section 5 hereof to have been satisfied at the time of the issuance of any Letter of Credit unless the applicable Letter of Credit Issuer shall have received a notice in writing to such effect from the Required Lenders pursuant to Section 2.01(b)(iv) hereof prior to the issuance of such Letter of Credit.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender the Letter of Credit Issuer of any Letter of Credit, such Issuing Lender the Letter of Credit Issuer shall be deemed to have sold and transferred to each Revolving Credit Lender (each such Revolving Credit Lender, in its capacity under this Section 3.043.3, a an “L/C Participant”), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lenderthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participationparticipation (each an “L/C Participation”), to the extent of such L/C Participant’s RL Revolving Credit Commitment Percentage (determined after giving effect to clause (f) below) in such each Letter of Credit, each substitute letter of credittherefor, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in ; provided that the Revolving Loan Commitments or RL Percentages Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the Lenders pursuant L/C Participants as provided in Section 4.1(b) and the L/C Participants shall have no right to Section 2.13, 2.15, 2.17 or 12.04(b), it is hereby agreed that, with respect to all outstanding Letters receive any portion of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may beany Fronting Fees.
(b) (b) In determining whether to pay under any Letter of Credit, no Issuing Lender the relevant Letter of Credit Issuer shall have any no obligation relative to the L/C Participants therein other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender the relevant Letter of Credit Issuer under or in connection with any Letter of Credit issued by it it, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 for the account of the respective Issuing Lender, the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local Time) on Issuer any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participationsresulting liability.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lender, any 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 110 150546217_8170136845_8
Appears in 1 contract
Samples: Credit Agreement (First Data Corp)
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 Bank with a Revolving Lender Loan Commitment, other than such Issuing Bank (each such Revolving LenderBank, 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 Adjusted Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining theretothereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Participants as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees). Upon any change in the respective Revolving Loan Commitments or RL Adjusted Percentages of the Lenders Banks pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b)13.04 or as a result of a Bank Default, it is hereby agreed that, with respect to all such outstanding Letters of Credit and Unpaid Drawings, 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 or of all Banks with respective Revolving Loan Commitments.
(b) In determining whether to pay under any Letter of Credit, no such Issuing Lender Bank shall have any no obligation relative to the Participants therein other Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 shall not create for an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 Issuing Bank any resulting liability to the Borrower or any Bank.
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective such Issuing Lender, Bank the amount of such Participant’s RL 's Adjusted Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to such Issuing Bank in Dollars such Participant's Adjusted Percentage of the Administrative Agent amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Adjusted Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to such Issuing Bank its Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Adjusted Percentage of any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the account failure of the respective any other Participant to make available to such Issuing Lender in Dollars 109 150546217_8170136845_8Bank such other Participant's Adjusted Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such 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 Adjusted Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such any Issuing LenderBank, any Lender 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 110 150546217_8170136845_8transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender (other than such Issuing Lender in its capacity (if any) as a Lender) and each such Revolving Lender, Lender (in its capacity under this Section 3.043.4, a “an "LC 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 LC Participant’s RL Percentage 's Proportionate Share, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the joint and several obligations of the respective Revolving Borrower Borrowers under this Credit Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages Proportionate Shares of the respective Lenders pursuant to Section 2.13, 2.15, 2.17 2.9 or 12.04(b)Section 11.6, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 3.4 to reflect the new RL Percentages Proportionate Shares 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 Participants therein 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 to be taken by it in good faith, shall not create for an such Issuing Lender any resulting liability to any Revolving Borrowerof the Borrowers, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a3.5(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each LC Participant of such failure, and each LC Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such LC Participant’s RL Percentage 's Proportionate Share of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local Time) 12:00 Noon on any Business Day, any LC Participant required to fund a payment under a Letter of Credit, such LC Participant shall make available to the Administrative Agent for the account of the respective applicable Issuing Lender in Dollars 109 150546217_8170136845_8such LC Participant's Proportionate Share of the amount of such payment on such Business Day in same day funds. If and to the extent such LC Participant shall not have so made its Proportionate Share of the amount of such payment available to the applicable Issuing Lender, such LC 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 Loans that are maintained as Prime Rate Loans for each day thereafter. The failure of any LC Participant to make available to any Issuing Lender its Proportionate Share of any payment under any Letter of Credit shall not relieve any other LC Participant of its obligation hereunder to make available to such Issuing Lender its Proportionate Share of any payment under such Letter of Credit on the date required, as specified above, but no LC Participant shall be responsible for the failure of any other LC Participant to make available to such Issuing Lender such other LC Participant's Proportionate Share of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective LC Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such LC Participant which has paid its RL Percentage Proportionate Share thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such LC Participant’s 's share (based upon the proportionate aggregate amount originally funded handed by such LC Participant to the aggregate amount funded by all LC 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 LC Participant, each Issuing Lender shall furnish to such LC Participant copies of any Letter of Credit issued by it and such other documentation with respect thereto as may reasonably be requested by such LC Participant.
(f) The obligations of the respective LC Participants to make payments to the Administrative Agent for the account of each an 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 Credit Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(i) any lack of validity or enforceability of this Credit Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof of any Credit Party may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lenderany LC Participant, any Lender or any other Person, whether in connection with this Credit Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying 110 150546217_8170136845_8transaction between any Credit Party or any Subsidiary of any Credit Party and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Bway Corp)
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by 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 Revolving Lender (each such Revolving other RL Lender, in its capacity under this Section 3.04, a “Participant”), and each such Participant RL Lender (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 's RL Percentage Percentage, in such Letter of Credit, each substitute letter Letter of creditCredit, each drawing made thereunder and the obligations of the respective Revolving Borrower US Borrowers under this Agreement with respect thereto, in the respective thereto (although Letter of Credit Fees (but not Fronting Feesshall be payable directly to the Administrative Agent for the account of the RL Lenders as provided in Section 3.01(b) payable and the Participants shall have no right to receive any portion of any Facing Fees with respect thereto, to 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 RL Lenders pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b15.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Percentages of the assignor assigning and assignee LenderRL Lender or of all RL Lenders, 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 Participants therein 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 Letter of Credit Issuer any resulting liability.
(c) In the event that any Issuing Lender Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower US Borrowers 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 the respective Issuing Lendersuch Letter of Credit Issuer, the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing isor, in accordance with Section 3.05(a)the case of any unreimbursed payment made in Euros, to be reimbursed of the Dollar Equivalent of such unreimbursed payment, as determined by the respective Revolving Borrower in a Primary Alternate Currency, Letter of Credit Issuer on the respective Primary Alternate Currencydate on which such unreimbursed payment was made by such Letter of Credit Issuer) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local Time) on any Business Day, notifies any Participant required to fund a payment under a Letter of CreditCredit prior to 12:00 Noon (Local time) on any Business Day, such Participant shall make available to the Administrative Agent at the applicable Payment Office for the account of the respective Letter of Credit Issuer in Dollars (or, in the case of any unreimbursed payment made in Euros, of the Dollar Equivalent thereof) such Participant's RL Percentage of the amount of such payment on such Business Day in same day funds (and, to the extent such notice is given after 12:00 Noon (Local 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 RL Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Rate (or, in the case of amounts owed in Euros, at such Letter of Credit Issuer's customary rate for interbank advances) for the first three days and at the interest rate applicable to Dollar Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8Letter of Credit Issuer its RL Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Letter of Credit Issuer its applicable 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 Letter of Credit Issuer such other Participant'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 the Administrative Agent has received for the account of such Issuing Lender Letter of Credit Issuer any payments from the respective 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 RL Percentage thereof, in Dollars (or in the respective Alternate Currency or, in the case of payments to be made any payment received in such Currencies pursuant to Section 3.05(a)Euros, of the Dollar Equivalent thereof) and in same day funds, an amount equal to such Participant’s share 's RL Percentage (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such 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, amendment or modification to, or termination of, a Standby Letter of Credit issued by it, give the request of any ParticipantAdministrative Agent, each Issuing Lender Participant and each Borrower written notice of the issuance of, amendment or modification to, or termination of, such Standby Letter of Credit, which notice (except in the case of a termination of a Standby Letter of Credit) shall furnish to such Participant copies be accompanied by a copy of any the Standby Letter of Credit or Standby Letters of Credit issued by it and each such other documentation as may reasonably be requested by such Participantamendment or modification thereto.
(f) Each Letter of Credit Issuer 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.
(g) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party Holdings or any Subsidiary thereof 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, such Issuing any Letter of Credit Issuer, any Lender, any 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 110 150546217_8170136845_8transaction between Holdings or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under 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 (RPP Capital Corp)
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 Revolving Lender other than such Issuing Lender (each such Revolving 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 Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 Sections 1.13 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Party or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent at the Payment Office for the account of the respective such Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the Administrative Agent for the account of such Issuing 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 Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Lender its Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its Percentage of 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 Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received (for the account of any such Issuing Lender Lender) any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each such Participant which has paid its RL Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Each Issuing Lender shall furnish to such Participant copies of any shall, promptly after the issuance of, or amendment to, a Letter of Credit issued by it give the Administrative Agent and the Borrower written notice of such issuance or amendment, as the case may be, and such other documentation notice shall be accompanied by a copy of the issued Letter of Credit or amendment, as the case may reasonably be requested by be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Participant, in writing, of such issuance or amendment and in the event a Participant shall so request, the Administrative Agent shall furnish such Participant with a copy of such issuance or amendment.
(f) 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. Upon request, the Administrative Agent shall, within 10 days after the last Business Day of each calendar month, deliver to each Participant a report setting forth for such preceding calendar month the aggregate daily Stated Amount available to be drawn under all outstanding Letters of Credit during such calendar month.
(g) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such any Lender, any Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Todco)
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 Revolving Lender, other than such Issuing Lender (each such Revolving 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 's Proportionate Share in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving US Borrower under this Agreement with respect theretothereto (other than the Facing Fees, in which shall be for the account of the respective Letter of Credit Fees (but not Fronting Fees) payable with respect theretoIssuing Lender), and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages Proportionate Shares of the Lenders pursuant to Section 2.13, 2.15, 2.17 1.12 or 12.04(b)12.04 or as a result of a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Percentages Proportionate Shares 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 Participants therein 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 Issuing Lender any resulting liability to the Borrowers or any Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving US 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 AgentPayments Administrator, 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 the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage 's Proportionate Share of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing isor, in accordance with Section 3.05(a)the case of any unreimbursed payment made in a currency other than Dollars, to be reimbursed of the US Dollar Equivalent of such unreimbursed payment, as determined by the respective Revolving Borrower in a Primary Alternate Currency, Issuing Lender on the respective Primary Alternate Currencydate on which such unreimbursed payment was made by the Issuing Lender) and in same day funds. If the Administrative Agent Payments Administrator so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall use its best efforts to make available to such Issuing Lender such Participant's Proportionate Share of the Administrative Agent amount of such payment on such Business Day in Dollars (or, in the case of any unreimbursed payment made in a currency other than Dollars, of the US Dollar Equivalent thereof) in same day funds or in any case, no later than 3:00 P.M. New York City time on the next succeeding Business Day. If and to the extent such Participant shall not have so made its Proportionate Share of the amount of such payment available to such 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. The failure of any Participant to make available to such Issuing Lender its Proportionate Share of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Proportionate Share of any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the account failure of the respective any other Participant to make available to such Issuing Lender in Dollars 109 150546217_8170136845_8such other Participant's Proportionate Share of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL Percentage Proportionate Share thereof, in Dollars (or in the respective Alternate Currency or, in the case of payments to be any unreimbursed payment made in such Currencies pursuant to Section 3.05(a)a currency other than Dollars, of the US 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 participationspayment pursuant to clause (c) above.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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 DIP Credit Documents; ;
(ii) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof the US Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative DIP Agent, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between the US Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the DIP 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 (or deemed issuance pursuant to Section 2.01(d)) 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 Bank with a Revolving Lender Loan Commitment, other than such Issuing Bank (each such Revolving LenderBank, 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 's Adjusted RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining theretothereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Participants as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees). Upon any change in the respective Revolving Loan Commitments or RL Percentages of the Lenders Banks pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b), it is hereby agreed that, with respect to all such outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new Adjusted RL 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 Participants therein other Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 shall not create for an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is if taken or omitted to be taken with in the absence of gross negligence or willful misconduct on and in accordance with the part standards of care specified in the Uniform Commercial Code of the State of New York, shall not create for such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Bank any resulting liability to the Borrower or any Bank.
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective such Issuing Lender, Bank the amount of such Participant’s 's Adjusted RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to such Issuing Bank in Dollars such Participant's Adjusted RL Percentage of the Administrative Agent amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Adjusted RL Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the Federal Funds Rate. The failure of any Participant to make available to such Issuing Bank its Adjusted RL Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Adjusted RL Percentage of any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the account failure of the respective any other Participant to make available to such Issuing Lender in Dollars 109 150546217_8170136845_8Bank such other Participant's Adjusted RL Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its Adjusted RL Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Parent or any Subsidiary thereof 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, such any Issuing LenderBank, any Lender 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 110 150546217_8170136845_8transaction between Parent or any Subsidiary of Parent and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Capstar Radio Broadcasting Partners 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 Revolving Lender with a Commitment, other than such Issuing Lender (each such Revolving 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 Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower Borrowers under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 Sections 1.12 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Percentages of the assignor and assignee LenderLender or of all Lenders with Commitments, 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Party or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower Borrowers 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 the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 1:00 P.M. (Local TimeNew 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 Administrative Agent at the Payment Office for the account of the respective such Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the Administrative Agent for the account of such Issuing 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 for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Lender its Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its Percentage of 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 Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received (for the account of any such Issuing Lender Lender) any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each such Participant which has paid its RL Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Each Issuing Lender shall furnish to such Participant copies of any shall, promptly after the issuance of, or amendment to, a Letter of Credit issued by it give the Administrative Agent and the Borrowers written notice of such issuance or amendment, as the case may be, and such other documentation notice shall be accompanied by a copy of the issued Letter of Credit or amendment, as the case may reasonably be requested by be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Participant, in writing, of such issuance or amendment and in the event a Participant shall so request, the Administrative Agent shall furnish such Participant with a copy of such issuance or amendment.
(f) 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. Upon request, the Administrative Agent shall, within 10 days after the last Business Day of each calendar month, deliver to each Participant a report setting forth for such preceding calendar month the aggregate daily Stated Amount available to be drawn under all outstanding Letters of Credit during such calendar month.
(g) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrowers or any Subsidiary thereof of their respective Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such any Lender, any Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction between the Borrowers or any of their respective Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving RL Lender (each such Revolving Lender, in its capacity under this Section 3.042.04, a “-18- "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, in a percentage equal to the extent of such Participant’s 's RL Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining theretoPercentage. Upon any change in the Revolving Loan Commitments or the respective RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 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. With respect to each Letter of Credit from time to time outstanding, the percentage participations therein of the various Lenders calculated as provided above in this Section 2.04(a) are herein called the "L/C Participation Percentages" of the various Lenders in such Letters of Credit.
(b) In determining whether to pay under any Letter of Credit, no such Issuing Lender shall have any no obligation relative to the Participants therein 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, shall not create for an such Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant the Borrower or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender 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 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 Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent at the Payment Office of the Administrative Agent for the account of the respective Issuing Lender, in U.S. Dollars, such Participant's L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its L/C Participation Percentage of the amount of such payment available to the Administrative Agent for the account of the respective 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. The failure of any Participant to make available to the Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8its relevant L/C Participation Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its relevant L/C Participation Percentage of 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 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 the Administrative Agent has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL relevant L/C Participation Percentage thereof, in U.S. Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Each Issuing Lender shall, promptly after the issuance of, or amendment to, a Standby 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 furnish to such Participant copies be accompanied by a copy of any the issued Standby Letter of Credit issued by it or amendment, as the case may be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Participant, in writing, of such issuance or amendment and in the event a Participant shall so request, the Administrative Agent shall furnish such other documentation as may reasonably be requested by Participant with a copy of such Participantissuance or amendment.
(f) Each Issuing Lender (other than the Swingline Lender) shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by facsimile transmission, the aggregate daily Stated Amount available to be drawn under the outstanding Trade Letters of Credit issued by such Issuing Lender for the previous week. 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 respective Participants to make payments to the Administrative Agent for the account of each 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof 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, such any Lender, any Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction between any Credit Party or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided, that the 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 acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender. Any action taken or omitted to be taken by any Issuing Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct shall not create for such Issuing Lender any resulting liability to the Participant.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance (or deemed issuance pursuant to Section 2.01(d)) 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 Bank with a Revolving Lender Loan Commitment, other than such Issuing Bank (each such Revolving LenderBank, 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 's Adjusted RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining theretothereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Participants as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees). Upon any change in the respective Revolving Loan Commitments or RL Percentages of the Lenders Banks pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b13.04(b), it is hereby agreed that, with respect to all such outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new Adjusted RL 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 Participants therein other Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 shall not create for an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 and in a final and non-appealable decision)accordance with the standards of care specified in the Uniform Commercial Code of the State of New York, shall not create for such Issuing Bank any resulting liability to the Borrower or any Bank.
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective such Issuing Lender, Bank the amount of such Participant’s 's Adjusted RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to such Issuing Bank in Dollars such Participant's Adjusted RL Percentage of the Administrative Agent amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Adjusted RL Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the Federal Funds Rate. The failure of any Participant to make available to such Issuing Bank its Adjusted RL Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Adjusted RL Percentage of any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the account failure of the respective any other Participant to make available to such Issuing Lender in Dollars 109 150546217_8170136845_8Bank such other Participant's Adjusted RL Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its Adjusted RL Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Parent or any Subsidiary thereof 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, such any Issuing LenderBank, any Lender 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 110 150546217_8170136845_8underlying
(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 Lender with a Revolving Lender Loan Commitment, other than such Issuing Bank (each such Revolving Lender, in its capacity under this Section 3.042.03, a “Participant”"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 substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective thereto (although Letter of Credit Fees (but not Fronting Feesshall be payable directly to the Administrative Agent for the account of the Participants as provided in Section 3.01(b) payable and the Participants shall have no right to receive any portion of any Facing Fees with respect theretoto such Letters of Credit), and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Adjusted Percentages of the Lenders pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b)13.04 or as a result of a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Adjusted Percentages of the assignor and assignee LenderLender or of all Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender Bank shall have any obligation relative to the Participants therein 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 Bank under or in connection with any Letter of Credit issued by it shall not create for an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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)jurisdiction, shall not create for such Issuing Bank any resulting liability to any Credit Party or any Lender.
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective such Issuing Lender, Bank the amount of such Participant’s RL 's Adjusted Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to such Issuing Bank in Dollars such Participant's Adjusted Percentage of the Administrative Agent amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Adjusted Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to such Issuing Bank its Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Adjusted Percentage of any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the account failure of the respective any other Participant to make available to such Issuing Lender in Dollars 109 150546217_8170136845_8Bank such other Participant's Adjusted Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender Bank shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each such Participant which has paid its RL Adjusted Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such any Issuing LenderBank, any Lender 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 110 150546217_8170136845_8transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Pca Valdosta Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender, other than such Issuing Lender (each such Revolving Lender, in its capacity under this Section 3.042.043.04, 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 Percentage, in such Letter of Credit, each substitute letter of credit, Credit and each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 1.132.13 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.043.04 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 Issuing Lender shall have any obligation relative to the Participants therein 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.053.05(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 for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, on or prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the 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 Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Percentage of any payment 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 Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit or modifications or amendments thereto issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it thereunderhereunder shall be irrevocable and not subject to counterclaim, set-off or other defense or any other 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold to each Revolving RC Lender (each such Revolving RC Lender, in its capacity under this Section 3.042.03(a), 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 participationparticipation (each a "Participation"), to the extent of such Participant’s RL 's Revolving Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining theretothereto (although Letter of Credit Fees will 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 pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b)14.04, it is hereby agreed that, with respect to all outstanding Letters of Credit Credit, and Unpaid DrawingsDrawings in respect of Letters of Credit, there shall be an automatic adjustment to the participations Participations pursuant to this Section 3.04 2.03 to reflect the new RL Revolving 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 have any no obligation relative to the Participants therein other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 an Issuing Lender any resulting liability to any Revolving BorrowerCredit, any other Credit Party, any Participant or any other Lender 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 decisionjudgment of a court of competent jurisdiction), shall not create for the Issuing Lender any resulting liability.
(c) In the event that any the Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.04(a), such the Issuing Lender shall promptly notify the Administrative AgentAgent and after receipt of such notice, which shall promptly the Administrative Agent will notify each respective Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent Agent, for the account of the respective Issuing Lender, the amount of such Participant’s RL 's Revolving Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender such Participant's Revolving Percentage of the amount of such payment on such Business Day in Dollars 109 150546217_8170136845_8and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of the Issuing Lender, such Participant agrees to pay to the Administrative Agent for the account of 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 the Administrative Agent for the account of the Issuing Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to the Administrative Agent for the account of the Issuing Lender its Revolving Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of the Issuing Lender its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, such other Participant's Revolving Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such the Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such the Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL Revolving Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) 's Revolving Percentage of the principal amount of such reimbursement obligation and of interest reimbursed thereon accruing from and after the date of the purchase of the respective participationsParticipations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each the Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: circumstances (other than in the case of gross negligence or willful misconduct of the Issuing Lender):
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such the Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Aearo CO I)
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 Revolving Lender, other than such Issuing Lender (each such Revolving Lender, in its capacity under this Section 3.04, a “Letter of Credit Participant”), and each such Letter of Credit Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Letter of Credit Participant’s RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, Credit and each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 2.13 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 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 Issuing Lender shall have any obligation relative to the Participants therein 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Letter of Credit Participant of such failure, and each Letter of Credit Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Letter of Credit Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, on or prior to 11:00 A.M. (Local TimeNew York time) on any Business Day, any Letter of Credit Participant required to fund a payment under a Letter of Credit, such Letter of Credit Participant shall make available to the Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such Letter of Credit Participant’s Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its Percentage of the amount of such payment available to the respective Issuing Lender, such Letter of Credit 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 Base Rate Loans for each day thereafter. The failure of any Letter of Credit Participant to make available to an Issuing Lender its Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to such Issuing Lender its Percentage of any payment with respect to any Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to such Issuing Lender such other Letter of Credit Participant’s Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Letter of Credit Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Letter of Credit Participant which has paid its RL Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Letter of Credit Participant’s share (based upon the proportionate aggregate amount originally funded by such Letter of Credit Participant to the aggregate amount funded by all Letter of Credit 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 Letter of Credit Participant, each Issuing Lender shall furnish to such Letter of Credit Participant copies of any standby Letter of Credit or modifications or amendments thereto issued by it and such other documentation as may reasonably be requested by such Letter of Credit Participant.
(f) The obligations of the respective Letter of Credit Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it hereunder shall be irrevocable and not subject to counterclaim, set-off or other defense or any other 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such Issuing Lenderany Letter of Credit Participant, any 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 110 150546217_8170136845_8transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by 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 Revolving Lender (each such Revolving Lender, in its capacity under this Section 3.04, a “Participant”), and each such Participant Lender (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 Percentage Lender's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and thereunder, the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Lenders as provided in section 4.1(b) and the Participants shall have no right to receive any portion of any fees of the nature contemplated by section 4.1(c) or (but not Fronting Fees) payable with respect d)), the obligations of any Letter of Credit Obligor 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, 2.17 or 12.04(bsection 12.4(c), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 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 Participants therein 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 an Issuing Lender such Letter of Credit Issuer any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)liability.
(c) In the event that any Issuing Lender a Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed (or caused any applicable Letter of Credit Obligor 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 the respective Issuing Lendersuch Letter of Credit Issuer, the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds, 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 11:00 A.M. (Local 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 Administrative Agent for the account of the respective Issuing Lender relevant Letter of Credit Issuer such Participant's Percentage of the amount of such payment on such Business Day in Dollars 109 150546217_8170136845_8same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the Administrative Agent for the account of the relevant Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Letter of Credit Issuer at the Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of the relevant Letter of Credit Issuer its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Letter of Credit Issuer its Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Letter of Credit Issuer such other Participant'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 the Administrative Agent has received for the account of such Issuing Lender Letter of Credit Issuer any payments from the respective 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 has paid its RL Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective 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 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, set-off, off defense or other right which any Revolving Borrower, the Borrower (or any other Letter of Credit Party or any Subsidiary thereof Obligor) may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person person for whom any such transferee may be acting), the Administrative Agent, such Issuing any Letter of Credit Issuer, any Lender, 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 110 150546217_8170136845_8transaction between the Borrower (or any other Letter of Credit Obligor) and the beneficiary named in any such Letter of Credit), other than any claim which the Borrower (or any other Letter of Credit Obligor which is the account party with respect to a Letter of Credit) may have against any applicable Letter of Credit Issuer for gross negligence or wilful misconduct of such Letter of Credit Issuer in making payment under any applicable Letter of Credit;
(iii) any draft, certificate or other document presented under 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 which may be imposed on, asserted against or incurred by the Letter of Credit Issuer in performing its respective duties in any way related to or arising out of its issuance of Letters of Credit, PROVIDED that no Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the Letter of Credit Issuer's gross negligence or willful misconduct.
Appears in 1 contract
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 Bank with a Basic Revolving Lender Loan Commitment, other than such Issuing Bank (each such Revolving LenderBank, 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 BRL Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining theretothereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Participants as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees). Upon any change in the Basic Revolving Loan Commitments or RL BRL Percentages of the Lenders Banks pursuant to Section 2.131.01(c), 2.15, 2.17 1.13 or 12.04(b)12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL BRL Percentages of the assignor and assignee LenderBank or of all Banks with Basic Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no such Issuing Lender Bank shall have any no obligation relative to the Participants therein other Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for an such Issuing Lender Bank any resulting liability to any Revolving Borrower, any other Credit Party, any Participant the Borrower or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Bank.
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective such Issuing Lender, Bank the amount of such Participant’s RL 's BRL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to such Issuing Bank in Dollars such Participant's BRL Percentage of the Administrative Agent 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 BRL Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Participant to make available to such Issuing Bank its BRL Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its BRL Percentage of any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the account failure of the respective any other Participant to make available to such Issuing Lender in Dollars 109 150546217_8170136845_8Bank such other Participant's BRL Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such 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 BRL Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such any Issuing LenderBank, any Lender 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 110 150546217_8170136845_8transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving L/C Lender, and each such L/C Lender (each such Revolving 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 's L/C Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan L/C Commitments or RL L/C Percentages of the Lenders pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL L/C 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL 's L/C Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such Participant's L/C 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 L/C 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 Term 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 L/C 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 L/C 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 L/C Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL L/C Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction 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 trans- ferred to each Lender with a Revolving Loan Commitment, other than such Issuing Lender (each such Revolving Lender, in its capacity under this Section 3.042.03, a “Participant”"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 's Adjusted Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective thereto (although Letter of Credit Fees (but not Fronting Feesshall be payable directly to the Administrative Agent for the account of the Participants as provided in Section 3.01(b) payable and the Participants shall have no right to receive any portion of any Facing Fees with respect theretoto such Letters of Credit), and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Adjusted Percentages of the Lenders pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b)13.04 or as a result of a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Adjusted Percentages of the assignor and assignee LenderLender or of all Lenders with Revolving Loan Commitments, 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Party or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the respective such Issuing Lender, Lender the amount of such Participant’s RL 's Adjusted Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent for the account of the respective such Issuing Lender in Dollars 109 150546217_8170136845_8such Participant's Adjusted Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Adjusted Percentage of the amount of such payment available to such Issuing 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. The failure of any Participant to make available to such Issuing Lender its Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Adjusted Percentage of 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 Adjusted Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each such Participant which has paid its RL Adjusted Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such any Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender, and each such Lender (each such Revolving 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 Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving 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, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 Section 2.14 or 12.04(bSection 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in U.S. Dollars (or to the extent the respective Unpaid Drawing isor, in accordance with Section 3.05(a)the case of any unreimbursed payment made in a currency other than U.S. Dollars, to be reimbursed the U.S. Dollar Equivalent of such unreimbursed payment, as determined by the respective Revolving Borrower Issuing Lender on the date on which such unreimbursed payment was made by such Issuing Lender) in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day immediately available funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in U.S. Dollars 109 150546217_8170136845_8(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 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 the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 U.S. Dollars (or in the respective Alternate Currency or, in the case of payments to be any unreimbursed payment made in such Currencies pursuant to Section 3.05(a)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 respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party Holdings or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between Holdings or any Subsidiary of Holdings and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender, and each such Lender (each such Revolving 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 's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 1.13 or 12.04(b13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 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 Issuing Lender shall have any obligation relative to the Participants therein 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 an such Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, on or prior to 11:00 A.M. 1:00 P.M. (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such Participant's Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the 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 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 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 Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (except in the case of an Issuing Lender's gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction 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 Revolving Lender, and each such Lender (each such Revolving 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 Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 2.13 or 12.04(b13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent currency of the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8or such other currency, as applicable, 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 (or in the case of amounts owed in Euros, at the Overnight Euro Rate) for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to 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 the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency Euros or Sterling in the case of payments to be made in such Currencies Euros or Sterling pursuant to Section 3.05(a3.04(c)) 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 respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party Holdings or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between Holdings or any Subsidiary of Holdings and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender (other than such Issuing Lender in its capacity (if any) as a Lender) and each such Revolving Lender, Lender (in its capacity under this Section 3.043.4, 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 's Proportionate Share, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the joint and several obligations of the respective Revolving Borrower Borrowers under this Credit Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages Proportionate Shares of the respective Lenders pursuant to Section 2.13, 2.15, 2.17 2.9 or 12.04(b)Section 11.6, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 3.4 to reflect the new RL Percentages Proportionate Shares 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving Borrowerof the Borrowers, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a3.5(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 for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage 's Proportionate Share of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local Time) 12:00 Noon 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 for the account of the respective applicable Issuing Lender in Dollars 109 150546217_8170136845_8such Participant's Proportionate Share of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Proportionate Share of the amount of such payment available to the applicable 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 Loans that are maintained as Prime Rate Loans for each day thereafter. The failure of any Participant to make available to any Issuing Lender its Proportionate Share of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Proportionate Share of any payment under such Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant's Proportionate Share of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL Percentage Proportionate Share thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded handed by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation with respect thereto as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each an 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 Credit Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(i) any lack of validity or enforceability of this Credit Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof of any Credit Party may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lenderany Participant, any Lender or any other Person, whether in connection with this Credit Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying 110 150546217_8170136845_8transaction between any Credit Party or any Subsidiary of any Credit Party and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Bway Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender with a Commitment, other than such Issuing Lender (each such Revolving 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 Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower Borrowers under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 Sections 1.12 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Percentages of the assignor and assignee LenderLender or of all Lenders with Commitments, 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Party or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower Borrowers 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 the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars (or to the extent relevant Permitted Currency as the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) applicable Letter of Credit was issued and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 1:00 P.M. (Local TimeNew 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 Administrative Agent at the Payment Office for the account of the respective such Issuing Lender in Dollars 109 150546217_8170136845_8the relevant Permitted Currency as the applicable Letter of Credit was issued such Participant’s Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the Administrative Agent for the account of such Issuing 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 for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Lender its Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its Percentage of 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 Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received (for the account of any such Issuing Lender Lender) any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each such Participant which has paid its RL Percentage thereof, in Dollars (or thereof in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and relevant Permitted Currency, 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 Each Issuing Lender shall furnish to such Participant copies of any shall, promptly after the issuance of, or amendment to, a Letter of Credit issued by it give the Administrative Agent and the Borrowers written notice of such issuance or amendment, as the case may be, and such other documentation notice shall be accompanied by a copy of the issued Letter of Credit or amendment, as the case may reasonably be requested by be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Participant, in writing, of such issuance or amendment and in the event a Participant shall so request, the Administrative Agent shall furnish such Participant with a copy of such issuance or amendment.
(f) 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. Upon request, the Administrative Agent shall, within 10 days after the last Business Day of each calendar month, deliver to each Participant a report setting forth for such preceding calendar month the aggregate daily Stated Amount available to be drawn under all outstanding Letters of Credit during such calendar month.
(g) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrowers or any Subsidiary thereof of their respective Subsidiaries may have at any time against a beneficiary beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such any Lender, any Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction between the Borrowers or any of their respective Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender of any Standby Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender (each such Revolving other than the Issuing Lender, in its capacity under this Section 3.04, a “Participant”), and each such Participant Lender 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, in proportion to the extent of such Participant’s RL Percentage Lender's Pro Rata Share, in such Standby Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining theretocollateral therefor. Upon any change in a Lender's Pro Rata Share of the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 2.17 or 12.04(b)Commitment, it is hereby agreed that, that with respect to all outstanding Standby Letters of Credit and Unpaid DrawingsCredit, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.3(d) to reflect the new RL Percentages Pro Rata Share of the assignor Revolving Loan Commitment of the assigning and assignee Lender, as the case may be.
(b) Lenders. In determining whether to pay under any Standby Letter of Credit, no the Issuing Lender shall have any no obligation relative to the Participants therein Lenders other than to confirm that any documents required to be delivered under such Standby Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Standby Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Standby Letter of Credit issued by it Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for an the Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 for the account of the respective Issuing Lender, the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any ParticipantLender, each the Issuing Lender shall furnish to such Participant Lender copies of any Standby Letter of Credit issued by it to which the Issuing Lender is party and such other documentation relating to such Standby Letter of Credit as may reasonably be requested by such Participant.Lender. As between the Borrower on the one hand and the Issuing Lender and the Lenders on the other hand, the Borrower assumes all risks of the acts and omissions of, or misuse of, the Standby Letters of Credit by the respective beneficiaries of such Standby Letters of Credit. Without limiting the generality of the foregoing, neither the Issuing Lender nor any other Lender shall be responsible (except in the case of its gross negligence or willful misconduct) for the following:
(fA) the form, validity, sufficiency, accuracy, genuineness or legal effect of any documents submitted by any party in connection with the application for and issuance of or any drawing under such Standby Letters of Credit, even if it should in fact prove to be in any respects invalid, insufficient, inaccurate, fraudulent or forged;
(B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Standby Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(C) failure of the beneficiary of any such Standby Letter of Credit to comply fully with conditions required in order to draw upon such Standby Letter of Credit, other than material conditions or instructions that expressly appear in such Standby Letter of Credit;
(D) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they are encoded;
(E) errors in interpretation of technical terms;
(F) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Standby Letter of Credit or the proceeds thereof;
(G) the misapplication by the beneficiary of any such Standby Letter of Credit of the proceeds of any drawing of any such Standby Letter of Credit; or
(H) any consequences arising from causes beyond the control of the Issuing Lender, including without limitation any acts of governments. The obligations of the respective Participants Lenders to make payments to the Administrative Agent for the account of each the Issuing Lender with respect to Standby 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: :
(iA) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; ;
(iiB) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof of its Subsidiaries may have at any time against a beneficiary named in a Standby Letter of Credit, any transferee of any Standby Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such the Issuing Lender, any Lender Lender, or any other Person, whether in connection with this Agreement, any Standby Letter of Credit, the transactions contemplated herein or any unrelated transactions transactions;
(including C) any underlying 110 150546217_8170136845_8draft, certificate or any other document presented under the Standby Letter of Credit shall prove to be forged, fraudulent, invalid or insufficient in any respect or any statement therein shall prove to be untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents;
(E) the occurrence of any Event of Default or Potential Event of Default; or
(F) the termination of this Agreement or any Commitment.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender any Facing Agent of any Letter of Credit, such Issuing Lender Facing Agent shall be deemed to have sold and transferred to each Revolving Lender Lender, other than such Facing Agent (each such Revolving Lender, in its capacity under this Section 3.042.9(e), a “"LC Participant”"), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderFacing Agent, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage Revolving Lender's Revolver Pro Rata Share, in such Letter of Credit, each substitute letter Letter of creditCredit, each drawing Drawing made thereunder and the obligations of the respective Revolving Borrower Company under this Agreement with respect thereto, in the respective thereto (although Letter of Credit Fees (but not Fronting Feesfees shall be payable directly to Administrative Agent for the account of the LC Participant as provided in Section 2.9(g) payable with respect theretoand the LC Participants shall have no right to receive any portion of the facing fees), and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 2.17 or 12.04(b)Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating to Letters of Credit, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.9(e) to reflect the new RL Percentages Revolver Pro Rata Share of the assignor and assignee LenderLender or of all Lenders with Revolving Commitments, as the case may be.
(b) . In determining whether to pay under any Letter of Credit, no Issuing Lender such Facing Agent shall have any no obligation relative to the LC Participants therein other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender any Facing Agent under or in connection with any Letter of Credit issued by it shall not create for an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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).
(c) In the event that any Issuing Lender makes any payment under any Letter judgment rendered by a court of Credit issued by it and the respective Revolving Borrower competent jurisdiction, shall not have reimbursed create for 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 Facing Agent any resulting liability to the Administrative Agent for the account of the respective Issuing Lender, the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense Company 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lender, any 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 110 150546217_8170136845_8.
Appears in 1 contract
Samples: Credit Agreement (Huntsman Advanced Materials (UK) LTD)
Letter of Credit Participations. (a) i 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 Revolving Lender, other than such Issuing Lender (each such Revolving Lender, in its capacity under this Section 3.042.14(c), 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 's Commitment Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in thereto (excluding the respective Letter of Credit Fees (but not Fronting Fees) payable with respect theretoFacing Fee), and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Commitment Percentages of the Lenders pursuant to Section 2.13, 2.15, 2.17 or 12.04(b)hereto, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.14(c) to reflect the new RL Commitment Percentages of the assignor and assignee LenderLender or of all Lenders, as the case may be.
(b) ii In determining whether to pay under any Letter of Credit, no the respective Issuing Lender shall have any no obligation relative to the Participants therein 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 Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for an such Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant the Borrower or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Lender.
(c) iii In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.14(d)(i), 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 the respective such Issuing Lender, Lender the amount of such Participant’s RL 's Commitment Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, notifies any Participant prior to 11:00 A.M. (Local TimeBoston time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available such funds to such Issuing Lender on such Business Day. If and to the Administrative Agent extent such Participant shall not have so made its Commitment Percentage of the amount of such payment available to such 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. The failure of any Participant to make available to such Issuing Lender its Commitment Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Commitment Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the account failure of the respective any other Participant to make available to such Issuing Lender in Dollars 109 150546217_8170136845_8such other Participant's Commitment Percentage of any such payment.
(d) iv Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each such Participant which has paid its RL Commitment Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) United States 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) v Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) vi The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and and, except as provided in Section 2.14(c)(ii), not subject to 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) A any lack of validity or enforceability of this Agreement or any of the other Credit DocumentsLender Agreement; (ii) B the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such any Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction between the Borrower and the beneficiary named in any such Letter of Credit);
Appears in 1 contract
Samples: Credit Agreement (Pc Connection 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 Revolving Lender, other than such Issuing Lender (each such Revolving 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 Issuing Lender, 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 substitute letter of credit, each drawing made thereunder and Acceptances created thereunder and the obligations of the respective Revolving Borrower Borrowers under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 2.13 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit Credit, Acceptances created thereunder and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 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 or create an Acceptance under any Letter of Credit, no such Issuing Lender shall have any no obligation relative to the Participants therein 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 Borrowers or any Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it or any Acceptance created thereunder and the respective Revolving 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew York time) on any Business Day, any Participant required to fund a payment under a Letter of CreditCredit or an Acceptance created thereunder, such Participant shall make available to the Administrative Agent for the account of the respective such Issuing Lender in Dollars 109 150546217_8170136845_8such Participant's Percentage of the amount of such payment (using the Dollar Equivalent thereof in the case of any such payment in respect of a Letter of Credit denominated in an Alternate Currency, determined on the date of such payment) on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to such Issuing 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 maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to such Issuing Lender its Percentage of any payment under any Letter of Credit or Acceptance shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Percentage of any payment with respect to any Letter of Credit or Acceptance created thereunder on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant's Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 relevant Issuing Lender shall furnish deliver to such Participant copies of any Letter of Credit issued by it and such other documentation as may be reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit and Acceptances issued by it thereunder shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (the respective Issuing Lender's only obligation being to confirm that any documents required to be delivered under such Letter of Credit appeared to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrowers or any Subsidiary thereof of their Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), any holder of an Acceptance, the Administrative Agent, such Issuing Lenderany Participant, any Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, any Acceptance, the transactions contemplated herein or any unrelated transactions (including any underlying 110 150546217_8170136845_8transaction between any Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold to each Revolving Lender (each such Revolving 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 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 substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Facing Fees) payable 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, 2.151.15, 2.17 1.18 or 12.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 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 Issuing Lender shall have any obligation relative to the Participants therein other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective Issuing Lender, the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a2.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8(or to the extent the respective Unpaid Drawing is, in accordance with Section 2.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) such 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 for the account of the respective 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 (or, in the case of amounts owed in a Primary Alternate Currency, the Administrative Agent’s customary rate for interbank advances in the relevant Primary Alternate Currency) for the first three days and at the interest rate applicable to Revolving Loans maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of an Issuing Lender such Participant’s RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender such Participant’s RL Percentage of any Letter of Credit issued by such Issuing Lender on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Issuing 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 the Administrative Agent has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a2.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lender, any 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 110 150546217_8170136845_8transaction between any Revolving Borrower, any other Credit Party or any Subsidiary thereof and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender, and each such Lender (each such Revolving 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 Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)), in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 2.15 or 12.04(b13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(ba) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the Participants therein 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 an such Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Loan Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(cb) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)) in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s RL Percentage of the amount of such payment (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)) on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)) available to 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 Effective Rate for the first three days and at the interest rate applicable to Loans that are maintained as ABR Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)) shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)) on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(dc) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL Percentage thereofthereof (plus, with respect to any Lender, any additional amount of Letter of Credit Exposure related to such Letter of Credit that was allocated to such Lender pursuant to Section 2.14(b)(i)), in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(ed) 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.
(fe) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving BorrowerParent Guarantor, any other Credit Party the Borrower or any Subsidiary thereof of their Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lenderany Participant, any Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions transaction contemplated herein or any unrelated transactions transaction (including any underlying 110 150546217_8170136845_8transaction between any Parent Guarantor, the Borrower or any Subsidiary of a Parent Guarantor or the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Exit Abl Credit Agreement (Pyxus International, Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by 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 Lender with a General Revolving Lender (each such Revolving Lender, in its capacity under this Section 3.04, a “Participant”)Commitment, and each such Participant Lender (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 Percentage Lender's General Revolving Facility Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and thereunder, the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective thereto (although Letter of Credit Fees (but not Fronting Feesshall be payable directly to the Administrative Agent for the account of the Lenders as provided in section 4.1(b) payable with respect and the Participants shall have no right to receive any portion of any fees of the nature contemplated by section 4.1(c)), the obligations of any 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, 2.17 or 12.04(bsection 12.4(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 section 3.4 to reflect the new RL General Revolving Facility 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 Participants therein 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 an Issuing Lender such Letter of Credit Issuer any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)liability.
(c) In the event that any Issuing Lender a Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the respective Revolving 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 the respective Issuing Lendersuch Letter of Credit Issuer, the amount of such Participant’s RL 's General Revolving Facility Percentage of such unreimbursed payment 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 Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds, PROVIDED, HOWEVER, that no Participant shall be obligated to pay to the Administrative Agent its General Revolving Facility Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8
(d) Whenever an Issuing Lender receives a payment relevant Letter of a reimbursement obligation as to which Credit Issuer such Participant's General Revolving Facility Percentage of the Administrative Agent has received for the account amount of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, payment on such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and Business Day in same day funds, an amount equal . If and to such Participant’s share (based upon the proportionate aggregate amount originally funded by extent such Participant to the aggregate amount funded by all Participants) shall not have so made its General Revolving Facility Percentage of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments payment available to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any relevant Letter of Credit (or any Person for whom any Issuer, such transferee may be acting), Participant agrees to pay to the Administrative Agent, Agent for the account of such Issuing Lender, any Lender or any other Person, whether in connection with this Agreement, any Letter of CreditCredit Issuer, the transactions contemplated herein or any unrelated transactions (including any underlying 110 150546217_8170136845_8forthwith on demand such amount, together
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 Revolving Lender, other than such Issuing Lender (each such Revolving 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 's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and Acceptances created thereunder and the obligations of the respective Revolving Borrower Borrowers under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 1.14 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit Credit, Acceptances created thereunder and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 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.
(b) In determining whether to pay or create an Acceptance under any Letter of Credit, no such Issuing Lender shall have any no obligation relative to the Participants therein 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 Borrowers or any Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it or any Acceptance created thereunder and the respective Revolving Borrower Borrowers 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew York time) on any Business Day, any Participant required to fund a payment under a Letter of CreditCredit or an Acceptance created thereunder, such Participant shall make available to the Administrative Agent for the account of the respective such Issuing Lender in Dollars 109 150546217_8170136845_8such Participant's Percentage of the amount of such payment (using the Dollar Equivalent thereof in the case of any such payment in respect of a Letter of Credit denominated in an Alternate Currency, determined on the date of such payment) on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to such Issuing 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 maintained as Base Rate for each day thereafter. The failure of any Participant to make available to such Issuing Lender its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Percentage of any payment with respect to any Letter of Credit or Acceptance created thereunder on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant's Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 relevant Issuing Lender shall furnish deliver to such Participant copies of any Letter of Credit issued by it and such other documentation as may be reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit and Acceptances issued by it thereunder shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (the respective Issuing Lender's only obligation being to confirm that any documents required to be delivered under such Letter of Credit appeared to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrowers or any Subsidiary thereof of their Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), any holder of an Acceptance, the Administrative Agent, such Issuing Lenderany Participant, any Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, any Acceptance, the transactions contemplated herein or any unrelated transactions (including any underlying 110 150546217_8170136845_8transaction between any Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Letter of Credit Participations. (a) 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 Lender having a Revolving Loan Commitment, and each such Lender (each such Revolving Lender, in its capacity under this Section 3.043.4, 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 Pro Rata Share of the aggregate amount of the Revolving Loan Commitments, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower Company under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages Pro Rata Share of the Lenders pursuant to Section 2.13, 2.15, 2.17 2.10 or 12.04(b)10.1B, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 3.4 to reflect the new RL Percentages Pro Rata Share of the aggregate amount of the Revolving Loan Commitments of the assignor and assignee Lender, as the case may be.
(b) B. In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the Participants therein 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 an such Issuing Lender any resulting liability to any Revolving BorrowerCompany, any other Credit Loan Party, any Participant Lender or any other Lender 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) C. In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower Company shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a)3.5A, 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 for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage Pro Rata Share of such unreimbursed payment in Dollars (or which amount, in the case of a drawing under a Letter of Credit which is denominated in a currency other than Dollars, shall be calculated by reference to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currencyapplicable Exchange Rate) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8(which amount, in the case of a drawing under a Letter of Credit which is denominated in a currency other than Dollars, shall be calculated by reference to the applicable Exchange Rate) such Participant’s Pro Rata Share of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Pro Rata Share 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 Pro Rata Share 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 Pro Rata Share of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s Pro Rata Share of any such payment.
(d) D. Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) Section 3.4C above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL Percentage Pro Rata Share thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) E. Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any a report detailing for each Letter of Credit issued by it the applicable letter of credit number, the amount of such Letter of Credit, the issue date and the expiry date of such Letter of Credit, and such other documentation as may reasonably be requested by such Participant.
(f) F. The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party Company or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between Company or any Subsidiary of Company and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Potential Event of Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Alliance HealthCare Services, Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any a Letter of CreditCredit under any Tranche, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender (under such Tranche, and each such Revolving Lender, Lender under such Tranche (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 Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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 under the relevant Tranche pursuant to Section 2.13, 2.15, 2.17 2.12 or 12.04(b14.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 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 a Letter of Credit, no Issuing Lender shall have any obligation relative to the Participants therein 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 an such Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. a.m. (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the 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 Base Rate plus 2.00% for each day thereafter. The failure of any Participant to make available to an Issuing Lender its Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, 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 respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Parent or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between the Parent or any Subsidiary of the Parent and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender, and each such Lender (each such Revolving 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 Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 2.13 or 12.04(b14.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. a.m. (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the 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 Eurodollar Rate for such interest periods as selected by the Administrative Agent, as in effect from time to time, plus the Applicable Margin as in effect from time to time for each day thereafter. The failure of any Participant to make available to an Issuing Lender its Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction 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 Revolving Lender, and each such Lender (each such Revolving 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 Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower U.S. Borrowers or the Canadian Borrowers, as the case may be, under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.152.14, 2.17 2.15 or 12.04(b13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower U.S. Borrowers or the Canadian 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in U.S. Dollars (or to the extent the respective Unpaid Drawing isor, in accordance with Section 3.05(a)the case of any unreimbursed payment made in a currency other than U.S. Dollars, to be reimbursed the U.S. Dollar Equivalent of such unreimbursed payment, as determined by the respective Revolving Borrower in a Primary Alternate Currency, Issuing Lender on the respective Primary Alternate Currencydate on which such unreimbursed payment was made by such Issuing Lender) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in U.S. Dollars 109 150546217_8170136845_8(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 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 the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 U.S. Dollars (or in the respective Alternate Currency or, in the case of payments to be any unreimbursed payment made in such Currencies pursuant to Section 3.05(a)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 respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Company or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between the Company or any Subsidiary of the Company and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default, or the failure of any of the other conditions specified in Section 6 or 7 to be saistifedsatisfied.
Appears in 1 contract
Samples: Abl Credit Agreement (Ciena Corp)
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 Revolving Lender, other than the Issuing Lender (each such Revolving Lender, in its capacity under this Section 3.042.20, 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 RL Percentage 's Ratable Portion, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in thereto (excluding the respective Letter of Credit Fees (but not Fronting Fees) payable with respect theretoFacing Fee), 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, 2.17 or 12.04(b)Lenders, it is hereby agreed that, with respect to all any outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.20 to reflect the new RL Percentages Ratable Portions of the assignor and assignee Lender, as the case may beLenders.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall have any no obligation relative to the Participants therein 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 if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for an the Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant the Borrower or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Lender.
(c) In the event that any the Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.21(a), such the 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 the respective Issuing Lender, Lender the amount of such Participant’s RL Percentage 's Ratable Portion of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lender, any 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 110 150546217_8170136845_8notifies any
Appears in 1 contract
Samples: Revolving Credit Agreement (Felcor/Lax Holdings Lp)
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 Lender with a Revolving Loan Commitment, other than such Issuing Lender (each such Revolving 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 Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower Borrowers under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 1.16 or 12.04(b)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving Borrowerthe Borrowers, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower Borrowers 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 the Administrative Agent for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s Percentage of the amount of such payment on such Business Day in same day funds; provided, however, that no Participant shall be obligated to pay to the respective Issuing Lender its Percentage of such unreimbursed amount for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to 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 maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to the respective Issuing Lender its Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Percentage of any such payment 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 Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party either of the Borrowers or any Subsidiary thereof of its respective Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such any Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction between the Borrowers or any Subsidiary of either of the Borrowers 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 to each Lender with a Revolving Loan Commitment, other than such Issuing Lender (each such Revolving 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 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 substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Facing Fees) payable 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, 2.17 1.13 or 12.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 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 Issuing Lender shall have any obligation relative to the Participants therein other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 the Administrative Agent for the account of the respective Issuing Lender, the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 for the account of the respective Issuing Lender such Participant's RL Percentage of the amount of such payment on such Business Day in Dollars 109 150546217_8170136845_8same 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 for the account of the respective 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 maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of an Issuing Lender such Participant's RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender such Participant's RL Percentage of any Letter of Credit issued by such Issuing Lender on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Issuing 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 the Administrative Agent has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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 respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lender, any 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 110 150546217_8170136845_8transaction between any Revolving Borrower, any other Credit Party or any Subsidiary thereof and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender (Lender, and each such Revolving Lender, Lender (in its capacity under this Section 3.043.4, 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 Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 2.14 or 12.04(b)13.4, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 3.4 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Loan Party, any Participant Lender or any Table of Contents other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a3.5(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 for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing isor, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower respect of Letters of Credit denominated in a Primary an Alternate Currency, the respective Primary such Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8(or, in respect of Letters of Credit denominated in an Alternate Currency, such Alternate Currency) such Participant’s RL Percentage of the amount of such payment on 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 (3) days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to 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 the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or or, in the respective respect of Letters of Credit denominated in an Alternate Currency in the case of payments to be made in Currency, such Currencies pursuant to Section 3.05(a)Alternate Currency) 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 respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(iA) any lack of validity or enforceability of this Agreement or any of the other Credit Loan Documents; ;
(iiB) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party Holdings or any Subsidiary thereof 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), Table of Contents the Administrative Agent, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between Holdings or any Subsidiary of Holdings and the beneficiary named in any such Letter of Credit);
(C) 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;
(D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(E) 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 Revolving Lender, and each such Lender (each such Revolving 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 Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable 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, 2.17 2.13 or 12.04(b14.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 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 Participants therein 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 an such Issuing Lender any resulting liability to any Revolving the Borrower, any other Credit Party, any Participant Lender or any other Lender 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 nonappealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 for the account of the respective such Issuing Lender, Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. a.m. (Local TimeNew 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 Administrative Agent for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such Participant’s Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Percentage of the amount of such payment available to the 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 Base Rate, as in effect from time to time, plus the Applicable Margin as in effect from time to time minus [1%] for each day thereafter. The failure of any Participant to make available to an Issuing Lender its Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction 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. (ai) Immediately upon the issuance by an the Issuing Lender of any Standby Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender (each such Revolving other than the Issuing Lender, in its capacity under this Section 3.04, a “Participant”), and each such Participant Lender 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, in proportion to the extent of such Participant’s RL Percentage Lender's Pro Rata Share, in such Standby Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower Borrowers under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining theretocollateral therefor. Upon any change in a Lender's Pro Rata Share of the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 2.17 or 12.04(b)Commitment, it is hereby agreed that, that with respect to all outstanding Standby Letters of Credit and Unpaid DrawingsCredit, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.3(d) to reflect the new RL Percentages Pro Rata Share of the assignor Revolving Loan Commitment of the assigning and assignee Lender, as the case may beLenders.
(bii) In determining whether to pay under any Standby Letter of Credit, no the Issuing Lender shall have any no obligation relative to the Participants therein Lenders other than to confirm that any documents required to be delivered under such Standby Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Standby Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Standby Letter of Credit issued by it Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for an the Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing 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 for the account of the respective Issuing Lender, the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local 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 for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender 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 (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(eiii) Upon the request of any ParticipantLender, each the Issuing Lender shall furnish to such Participant Lender copies of any Standby Letter of Credit issued by it to which the Issuing Lender is party and such other documentation relating to such Standby Letter of Credit as may reasonably be requested by such ParticipantLender.
(fiv) As between the Borrowers on the one hand and the Issuing Lender and the Lenders on the other hand, the Borrowers assume all risks of the acts and omissions of, or misuse of the Standby Letters of Credit by the respective beneficiaries of such Standby Letters of Credit. Without limiting the generality of the foregoing, neither the Issuing Lender nor any other Lender shall be responsible (except in the case of its gross negligence or willful misconduct) for the following:
(A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any documents submitted by any party in connection with the application for and issuance of or any drawing under such Standby Letters of Credit, even if it should in fact prove to be in any respects invalid, insufficient, inaccurate, fraudulent or forged;
(B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Standby Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(C) failure of the beneficiary of any such Standby Letter of Credit to comply fully with conditions required in order to draw upon such Standby Letter of Credit, other than material conditions or instructions that expressly appear in such Standby Letter of Credit;
(D) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they are encoded;
(E) errors in interpretation of technical terms;
(F) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Standby Letter of Credit or the proceeds thereof;
(G) the misapplication by the beneficiary of any such Standby Letter of Credit of the proceeds of any drawing of any such Standby Letter of Credit; or
(H) any consequences arising from causes beyond the control of the Issuing Lender, including without limitation any acts of governments.
(v) The obligations of the respective Participants Lenders to make payments to the Administrative Agent for the account of each the Issuing Lender with respect to Standby 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: :
(iA) any lack of validity or enforceability of this Agreement or any of the other Credit Loan Documents; ;
(iiB) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof the Borrowers may have at any time against a beneficiary named in a Standby Letter of Credit, any transferee of any Standby Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such the Issuing Lender, any Lender Lender, or any other Person, whether in connection with this Agreement, any Standby Letter of Credit, the transactions contemplated herein or any unrelated transactions transactions;
(including C) any underlying 110 150546217_8170136845_8draft, certificate or any other document presented under the Standby Letter of Credit shall prove to be forged, fraudulent, invalid or insufficient in any respect or any statement therein shall prove to be untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents;
(E) the occurrence of any Event of Default or Potential Event of Default; or
(F) the termination of this Agreement or any Commitment.
Appears in 1 contract
Samples: Credit Agreement (Overnite Corp)
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 Revolving Lender, other than the Issuing Lender (each such Revolving Lender, in its capacity under this Section 3.042.19, 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 RL Percentage 's Ratable Portion, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in thereto (excluding the respective Letter of Credit Fees (but not Fronting Fees) payable with respect theretoFacing Fee), and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Credit Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.15, 2.17 or 12.04(b)Lenders, it is hereby agreed that, with respect to all any outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.19 to reflect the new RL Percentages Ratable Portions of the assignor and assignee Lender, as the case may beLenders.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall have any no obligation relative to the Participants therein 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 if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for an the Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant the Borrower or any other Lender unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision)Lender.
(c) In the event that any the Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.20(a), such the 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 the respective Issuing Lender, Lender the amount of such Participant’s RL Percentage 's Ratable Portion of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, notifies any Participant prior to 11:00 11: 00 A.M. (Local TimeNew York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available such funds to the Administrative Agent Issuing Lender on such Business Day. If and to the extent such Participant shall not have so made its Ratable Portion of the amount of such payment available to the Issuing Lender, such Participant agrees to pay to 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 the Issuing Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to the Issuing Lender its Ratable Portion of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Issuing Lender its Ratable Portion of any payment under such Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the account failure of any other Participant to make available to the respective Issuing Lender in Dollars 109 150546217_8170136845_8such other Participant's Ratable Portion of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause (c) above, such the Issuing Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute such funds to each such Participant which has paid its RL Percentage thereof, in Dollars (or in accordance with the respective Alternate Currency in the case terms of payments to be made in such Currencies pursuant to Section 3.05(a)) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations2.13.
(e) Upon the request of any Participant, each the Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever 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, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such the Issuing Lender, any Lender 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 110 150546217_8170136845_8transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender Bank of any Letter of Credit, such Issuing Lender Bank shall be deemed to have sold and transferred to each Revolving Lender (other than such Issuing Bank in its capacity (if any) as a Lender) and each such Revolving Lender, Lender (in its capacity under this Section 3.04SECTION 3.4, a “Participant”an "LC 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 LC Participant’s RL Percentage 's Proportionate Share, in such Letter of Credit, each substitute letter of credit, each drawing Drawing or payment made thereunder and the joint and several obligations of the respective Revolving Borrower Borrowers under this Credit Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages Proportionate Shares of the respective Lenders pursuant to Section 2.13, 2.15, 2.17 or 12.04(b)the terms of this Credit Agreement, it is hereby agreed that, with respect to all outstanding Letters Letter of Credit and Unpaid DrawingsObligations, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 SECTION 3.4 to reflect the new RL Percentages Proportionate Shares 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 Bank shall have any obligation relative to the Participants therein 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 Bank under or in connection with any Letter of Credit issued by it shall not create for an such Issuing Lender Bank any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Lender or any other Lender Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a)it, such Issuing Lender Bank shall promptly notify the Administrative Agent, which shall promptly notify each LC Participant of such failure, and each LC Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the respective such Issuing Lender, Bank the amount of such LC Participant’s RL Percentage 's Proportionate Share of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) United States dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (Local TimeNew York time) on any Business Day, any LC Participant required to fund a payment under a Letter of Credit, such LC Participant shall make available to such Issuing Bank in United States dollars such LC Participant's Proportionate Share of the Administrative Agent amount of such payment on such Business Day in same day funds. If and to the extent such LC Participant shall not have so made its Proportionate Share of the amount of such payment available to the Issuing Bank, such LC Participant agrees to pay to such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate for the account first 3 days and at the interest rate applicable to Revolving Loans for each day thereafter. The failure of any LC Participant to make available to an Issuing Bank its Proportionate Share of any payment under any Letter of Credit shall not relieve any other LC Participant of its obligation hereunder to make available to such Issuing Bank its Proportionate Share of any payment under any Letter of Credit on the respective date required, as specified above, but no LC Participant shall be responsible for the failure of any other LC Participant to make available to such Issuing Lender in Dollars 109 150546217_8170136845_8Bank such other LC Participant's Proportionate Share of any such payment.
(d) Whenever an Issuing Lender Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective LC Participants pursuant to clause CLAUSE (c) above, such Issuing Lender Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such LC Participant which has paid its RL Percentage Proportionate Share thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) United States dollars and in same day funds, an amount equal to such LC Participant’s 's share (based upon the proportionate aggregate amount originally funded by such LC Participant to the aggregate amount funded by all LC 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 LC Participant, each Issuing Lender Bank shall furnish to such LC Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such LC Participant.
(f) The obligations of the respective LC Participants to make payments to the Administrative Agent for the account of each any Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Credit Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(i) any lack of validity or enforceability of this Credit Agreement or any of the other Credit Documents; ;
(ii) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof of any Credit Party may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lenderany LC Participant, any Lender or any other Person, whether in connection with this Credit Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying 110 150546217_8170136845_8transaction between any Credit Party or any Subsidiary of any Credit Party and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) 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. (aA) 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 Revolving Lender (other than the Issuing Lender in its capacity (if any) as a Lender) and each such Revolving Lender, Lender (in its capacity under this Section 3.04SECTION 3.4, a “Participant”"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 RL Percentage 's Pro Rata Share, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective Letter of Credit Fees (but not Fronting Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments of the Lenders or RL Percentages Pro Rata Shares of the Lenders pursuant to Section 2.13, 2.15, 2.17 SECTION 2.9 or 12.04(b)SECTION 11.6, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 SECTION 3.4 to reflect the new RL Percentages Pro Rata Shares of the assignor and assignee Lender, as the case may be.
(bB) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any obligation relative to the Participants therein 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 an the Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant Lender or any other Lender 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).
(cC) In the event that any the Issuing Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a3.5(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 the Administrative Agent for the account of the respective Issuing Lender, Lender the amount of such Participant’s RL Percentage 's Pro Rata Share of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local Time) 12:00 noon 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 for the account of the respective Issuing Lender in Dollars 109 150546217_8170136845_8such Participant's Pro Rata Share of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Pro Rata Share of the amount of such payment available to the Issuing Lender, such Participant agrees to pay to 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 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 Prime Rate Loans for each day thereafter. The failure of any Participant to make available to the Issuing Lender its Pro Rata Share of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Issuing Lender its Pro Rata Share of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Issuing Lender such other Participant's Pro Rata Share of any such payment.
(dD) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Lender any payments from the respective Participants pursuant to clause CLAUSE (cC) above, such the Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL Percentage Pro Rata Share thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 3.05(a)) 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.
(eE) Upon the request of any Participant, each the Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(fF) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: :
(iI) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; ;
(iiII) the existence of any claim, set-offsetoff, defense or other right which any Revolving Borrower, any other Credit Party or any Subsidiary thereof of any Credit Party may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, such Issuing Lenderany Participant, any 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 110 150546217_8170136845_8transaction between any Credit Party or any Subsidiary of any Credit Party and the beneficiary named in any such Letter of Credit);
(III) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(IV) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(V) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Weider Nutrition International Inc)
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 Revolving other RL Lender or PF Lender, as the case may be, and each such RL Lender or PF Lender (each such Revolving 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 LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s Adjusted RL Percentage or PF Percentage, as the case may be, in such Letter of Credit, each substitute letter Letter of creditCredit, each drawing made thereunder (each, a “Drawing”) and the obligations of the respective Revolving Borrower under this Agreement with respect thereto, in the respective thereto (although WC Letter of Credit Fees (but not Fronting Feesshall be payable directly to the Administrative Agent for the account of the RL Lenders as provided in Section 3.01(c), the PF Facility Fee and the interest referred to in Section 2.04(b)(ii) shall be payable directly to the Administrative Agent for the account of the PF Lenders as provided in Sections 3.01(d) and 2.04(b)(ii), respectively, and the Participants shall have no right to receive any portion of any Facing Fees or any administrative fees referred to in Section 3.01(f)) with respect thereto, to such Letters of Credit and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or the Adjusted RL Percentages of the RL Lenders or the PF Letter of Credit Commitments or the PF Percentages of the PF Lenders, in each case pursuant to Section 2.13, 2.15, 2.17 1.13 or 12.04(b)13.04(b) or as a result of a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new Adjusted RL Percentages or PF Percentages of the assignor and assignee RL Lender or PF Lender, 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 Participants therein 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 an Issuing Lender any resulting liability to any Revolving Borrower, any other Credit Party, any Participant or any other Lender 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 Letter of Credit Issuer any resulting liability.
(ci) In the event that any Issuing Lender makes any Any payment made by a Letter of Credit Issuer under any Letter of Credit issued by it shall be deemed to have been drawn first under PF Letters of Credit for so long as there are any undrawn PF Letters of Credit and thereafter shall be deemed to be drawn under WC Letters of Credit.
(ii) In the event that any Letter of Credit Issuer makes any payment under any WC Letter of Credit issued by it and the respective Revolving 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 the respective Issuing Lendersuch Letter of Credit Issuer, the amount of such Participant’s Adjusted RL Percentage of such unreimbursed payment 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 Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local Time) on any Business Day, notifies any Participant required to fund a payment under a WC 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 Letter of Credit Issuer such Participant’s Adjusted RL Percentage of the amount of such payment on such Business Day in same day funds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Participant shall make such payment on the immediately following Business Day). If and to the extent such Participant shall not have so made its Adjusted RL Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Rate; provided that if any 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 Participant has been notified by the Administrative Agent or the respective Letter of Credit Issuer to make such amounts available, then the respective Participant shall pay interest on the amounts demanded of it at the same rates payable from time to time by the Borrower on the respective Unpaid Drawings pursuant to Section 2.04(a). The failure of any Participant to make available to the Administrative Agent for the account of the respective Issuing Letter of Credit Issuer its Adjusted RL Percentage of any payment under any WC Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Letter of Credit Issuer its applicable Adjusted RL Percentage of any payment under any such WC 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 Letter of Credit Issuer such other Participant’s Adjusted RL Percentage of any such payment.
(iii) In the event that a Letter of Credit Issuer makes any payment under any PF Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Letter of Credit Issuer pursuant to Section 2.04(a), each PF Lender hereby irrevocably authorizes the Administrative Agent to reimburse such Letter of Credit Issuer for such amount solely from such PF Lender’s PF Percentage of the Credit-Linked Deposits on deposit with the Administrative Agent in Dollars 109 150546217_8170136845_8the Credit-Linked Deposit Account.
(d) Whenever an Issuing Lender any Letter of Credit Issuer receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender Letter of Credit Issuer any payments from the respective 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 Adjusted RL Percentage thereof or PF Percentage thereof, in Dollars (or in the respective Alternate Currency in as the case of payments to be made may be, in such Currencies pursuant to Section 3.05(a)) U.S. Dollars and in same day funds, an amount equal to such Participant’s share (based upon Adjusted RL Percentage or PF Percentage, as the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) case may be, of the principal amount of such reimbursement obligation thereof 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 2.03(d) to a Participant which is a PF Lender shall be made by such Letter of Credit Issuer to the Administrative Agent for the account of such PF Lender and, except for a payment made as required under Section 4.02(j), for deposit in the Credit-Linked Deposit Account).
(e) Upon Each Letter of Credit Issuer shall, promptly after each issuance of, or amendment or modification to, a Standby Letter of Credit issued by it, give the request Administrative Agent and the Borrower written notice of any Participantthe issuance of, each 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 the Standby Letter of Credit or Standby Letters of Credit issued by it and each such other documentation amendment or modification thereto. Promptly upon receipt of such notice, the Administrative Agent shall notify each Participant, in writing, of such issuance, amendment or modification and, if any Participant shall so request, the respective Letter of Credit Issuer shall furnish said Participant with a copy of such Standby Letter of Credit, such amendment or such modification, as the case may reasonably be requested by such Participantbe.
(f) 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.
(g) The obligations of the respective Participants to make payments to the Administrative Agent for the account of each Issuing Lender 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, set-off, defense or other right which any Revolving Borrower, any other Credit Party the Borrower or any Subsidiary thereof 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, such Issuing any Letter of Credit Issuer, any Lender, any 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 110 150546217_8170136845_8transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under 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
