Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any Letter of Credit, such Issuing Bank shall be deemed to have sold to each other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation (each a “Participation”), to the extent of such Participant’s Revolving Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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 of the Banks pursuant to Section 1.13 or 14.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, and Unpaid Drawings, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 to reflect the new Revolving Percentages of the assignor and assignee Bank. (b) In determining whether to pay under any Letter of Credit, an Issuing Bank shall have no obligation relative to the Participants other than to confirm that any documents required to be delivered under such Letter of Credit 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 Bank under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability. (c) In the event that an Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 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 such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations. (e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following: (i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher; (iv) errors in interpretation of technical terms; (v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof; (vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and (vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments. (f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank): (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 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, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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; or (v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any The Issuing Bank of any Letter irrevocably agrees to grant and hereby grants to each other Revolving Lender, and, to induce the Issuing Bank to issue Letters of Credit, such Issuing Bank shall be deemed to have sold to each other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”), Revolving Lender irrevocably agrees to accept and each such Participant shall be deemed irrevocably purchase and unconditionally to have purchased hereby accepts and received purchases from such the Issuing Bank, without recourse or warrantyon the terms and conditions set forth below, for such Revolving Lender’s own account and risk, an undivided interest equal to such Revolving Lender’s Pro Rata Share in the Issuing Bank’s obligations and participation (rights under and in respect of each Letter of Credit and the amount of each draft paid by the Issuing Bank thereunder. Each Revolving Lender agrees with the Issuing Bank that, if a “Participation”)draft is paid under any Letter of Credit for which the Issuing Bank is not reimbursed in full by the Company within one Business Day, such Revolving Lender shall pay to the extent Issuing Bank upon demand an amount equal to such Revolving Lender’s Pro Rata Share of the amount of such Participantdraft, or any part thereof, that is not so reimbursed. Each Revolving Lender’s obligation to pay such amount shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Revolving Percentage in such Letter Lender may have against the Issuing Bank, the Company or any other Person for any reason whatsoever, (B) the occurrence of Credit, each substitute letter a Default or an Event of credit, each drawing made thereunder and Default or the obligations failure to satisfy any of the Borrower other conditions specified in Section 3.2, (C) any adverse change in the condition (financial or otherwise) of Company, (D) any breach of this Agreement or any other Credit Document by the Company, any other Credit Party or any other Revolving Lender, or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If any Revolving Lender fails to make available to Administrative Agent (for the benefit of Issuing Bank) or Issuing Bank any amount due under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto to Revolving LC Obligations (although Letter excluding the undrawn amount 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 of the Banks pursuant to Section 1.13 or 14.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, and Unpaid Drawings, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 to reflect the new Revolving Percentages of the assignor and assignee Bank.
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank shall have no obligation relative to the Participants other than to confirm that any documents required to be delivered under such Letter of Credit 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 Bank under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability.
(c) In the event that an Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank Revolving Lender shall promptly notify the Administrative Agent be deemed to be a Defaulting Lender and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, on behalf of, and for the account of such benefit of, the Issuing Bank, the shall be entitled to recover such amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand from such amount, Revolving Lender 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 thereon at the overnight Federal Funds Rate. The failure of any Participant interest rate then applicable to make available to the Administrative Agent for the account of such Issuing Bank 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 such Issuing Bank 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.
Loans that are Base Rate Loans (d) Whenever an Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage inclusive of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective ParticipationsBase Rate Margin applicable thereto) until paid in full.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
(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 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, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (AvidXchange Holdings, Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit, such Issuing Bank the Letter of Credit Issuer shall be deemed to have sold and transferred to each other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”)Lender, and each such Participant Lender (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bankthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage Lender's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although the Letter of Credit Fees will Fee shall be paid payable directly to the Administrative Agent for the ratable account of the Participants Lenders as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees)) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks Lenders pursuant to Section 1.13 13.04(b) or 14.04upon a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.05 to reflect the new Revolving Percentages of the assignor assigning and assignee BankLender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank the Letter of Credit Issuer shall not have no any obligation relative to the Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit 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 Bank under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability.they
(c) In the event that an Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.04(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent Agent, and after receipt of such notice, the Administrative Agent will shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing Bankthe Letter of Credit Issuer, the amount of such Participant’s Revolving 's Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Percentage of such unreimbursed amount for any wrongful payment made by the Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. If the Administrative Agent so notifies, notifies any Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, 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 applicable Issuing Bank Letter of Credit Issuer such Participant’s Revolving 's Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment Unpaid Drawing available to the Administrative Agent for the account of an Issuing Bankthe Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer its Revolving Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of the Letter of Credit Issuer such other Participant’s Revolving 's Percentage of any such payment.
(d) Whenever an Issuing Bank the 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 Bank the Letter of Credit Issuer any payments from the Participants pursuant to clause (c) above, such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving 's Percentage of the principal amount of such reimbursement thereof and of interest reimbursed thereon accruing from and at the overnight Federal Funds Effective Rate after the date of the purchase of the respective Participationsparticipations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever and (provided that no Participant shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances (other than in the case of gross negligence or willful misconduct of such Issuing Bank):required to make payments resulting
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right which the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bankthe Letter of Credit Issuer, any Bank, Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower 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, or invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Lender, other RC Bank than such Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.032.04, a “Participant”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving 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 Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks Lenders pursuant to Section 1.13 or 14.0413.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, Acceptances created thereunder and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.04 to reflect the new Revolving Percentages of the assignor and assignee BankLender or of all Lenders, as the case may be.
(b) In determining whether to pay or create an Acceptance under any Letter of Credit, an such Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final and non–appealable proceeding, shall not create for such Issuing Bank Lender any resulting liabilityliability to the Borrowers or any Lender.
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit issued by it or any Acceptance created thereunder and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable such Issuing Bank Lender in Dollars such Participant’s Revolving 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 Dollars and 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 an such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Revolving Loans maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving 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 the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under with respect to any Letter of Credit or Acceptance created thereunder on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, such Issuing Lender such other Participant’s Revolving Percentage of any such payment.
(d) Whenever an any Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Upon the Borrower and an Issuing Bankrequest of any Participant, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of relevant Issuing Lender shall deliver to such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect Participant copies of any documents submitted by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which issued by it and such other documentation as may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages reasonably requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an each Issuing Bank Lender with respect to Letters of Credit and Acceptances issued thereunder shall be irrevocable and not subject to counterclaim, set-off or any 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower Borrowers or any of their Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), any holder of an Acceptance, the Administrative Agent, any Issuing Bank, any BankParticipant, 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 transaction between the any Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Lender, other RC Bank than such Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.03, a “"Participant”"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage 's Proportionate Share in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the US Borrower under this Agreement with respect theretothereto (other than the Facing Fees, which shall be for the account of the respective Issuing Lender), and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or Proportionate Shares of the Banks Lenders pursuant to Section 1.13 1.12 or 14.0412.04 or as a result of a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 to reflect the new Revolving Percentages Proportionate Shares of the assignor and assignee BankLender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an such Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Lender any resulting liabilityliability to the Borrowers or any Lender.
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit and the US Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticePayments Administrator, the Administrative Agent will which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving Percentage 's Proportionate Share of such unreimbursed payment in Dollars (or, in the case of any unreimbursed payment made in a currency other than Dollars, of the US Dollar Equivalent of such unreimbursed payment, as determined by the Issuing Lender on the date on which such unreimbursed payment was made by the Issuing Lender) and in same day funds. If the Administrative Agent Payments Administrator so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall use its best efforts to make available to the Administrative Agent for the account of the applicable such Issuing Bank Lender such Participant’s Revolving Percentage 's Proportionate Share of the amount of such payment on such Business Day in Dollars and (or, in the case of any unreimbursed payment made in a currency other than Dollars, of the US Dollar Equivalent thereof) in same day fundsfunds 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 Revolving Percentage Proportionate Share of the amount of such payment available to the Administrative Agent for the account of an such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage Proportionate Share 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 Lender its Revolving Percentage Proportionate 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 Administrative Agent, such Issuing Lender such other Participant’s Revolving Percentage 's Proportionate Share of any such payment.
(d) Whenever an any Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage Proportionate Share thereof, in Dollars (or, in the case of any unreimbursed payment made in a currency other than Dollars, of the US Dollar Equivalent thereof) and in same day funds, an amount equal to such Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationspayment pursuant to clause (c) above.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an each Issuing Bank 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 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, any Issuing Bank, any BankParticipant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the US Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the 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 by any the Issuing Bank of any Letter of Credit (and on the Closing Date with respect to any Existing Letter of Credit), such the Issuing Bank shall be deemed to have sold and transferred to each other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, Lender with a “Participant”)Revolving Commitment, and each such Participant Lender (each a “LC Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Bank, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such ParticipantLender’s Revolving Percentage Facility Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and thereunder, the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will shall be paid payable directly to the Administrative Agent for the ratable account of the Participants Lenders as provided in Section 3.01(bsection 4.1(b) and the LC Participants shall have no right to receive any portion of any Facing Feesfees 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 for, or guaranty pertaining to, any of the foregoing. Upon any change in the Revolving Loan Commitments of the Banks Lenders pursuant to Section 1.13 or 14.04section 12.4(b), it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 section 3.4 to reflect the new Revolving Facility Percentages of the assignor assigning and assignee BankLender.
(b) In determining whether to pay under any Letter of Credit, an the Issuing Bank shall not have no any obligation relative to the LC Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit 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 Bank under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank any resulting liability.
(c) In the event that an the Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed (or caused any applicable Letter of Credit Obligor to reimburse) such amount in full to such the Issuing Bank pursuant to Section 2.04(asection 3.3(a), such the Issuing Bank shall promptly notify the Administrative Agent Agent, and after receipt of such notice, the Administrative Agent will shall promptly notify each LC Participant of such failure, and each LC Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such the Issuing Bank, the amount of such LC Participant’s Revolving Facility Percentage of such unreimbursed payment in Dollars and in same day funds, provided, however, that no LC Participant shall be obligated to pay to the Administrative Agent its Revolving Facility Percentage of such unreimbursed amount for any wrongful payment made by the Issuing Bank under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Issuing Bank. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on notifies any Business Day, any LC 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 LC Participant shall make available to the Administrative Agent for the account of the applicable Issuing Bank such LC Participant’s Revolving Facility Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such LC 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 an the Issuing Bank, such LC Participant agrees to pay to the Administrative Agent for the account of such the Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such the Issuing Bank at the overnight Federal Funds Effective Rate. The failure of any LC Participant to make available to the Administrative Agent for the account of such the Issuing Bank its Revolving Facility Percentage of any payment under any Letter of Credit shall not relieve any other LC Participant of its obligation hereunder to make available to the Administrative Agent for the account of such the Issuing Bank its Revolving Facility Percentage 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 the Administrative Agent, Agent for the account of the Issuing Bank such other LC Participant’s Revolving Facility Percentage of any such payment.
(d) Whenever an the Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such the Issuing Bank any payments from the LC Participants pursuant to clause (csection 3.4(c) above, such the Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each LC Participant which has paid its Revolving Facility Percentage thereof, in Dollars and in same day funds, an amount equal to such LC Participant’s Revolving Facility Percentage of the principal amount of such reimbursement thereof and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations, as and to the extent so received.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the LC Participants to make payments to the Administrative Agent for the account of an the Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower (or any other Letter of Credit Obligor) may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any the Issuing Bank, any BankLender, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower (or any 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 the Issuing Bank for gross negligence or willful misconduct of the Issuing Bank in making payment under any applicable 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 DefaultDefault (except if at the time the particular Letter of Credit is issued, the Issuing Bank had actual written notice from a Lender notifying the Issuing Bank that an Event of Default had occurred and was continuing under this Agreement and had not been waived and that any further issuances of any Letters of Credit would not be entitled to the benefit of the participation arrangements provided in this section 3.4, no LC Participant shall be obligated to make payments to the Issuing Bank on account of such Letter of Credit until such time as the Event of Default has been waived).
(f) To the extent the Issuing Bank is not indemnified by the Borrower, the LC Participants will reimburse and indemnify the Issuing Bank, 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 Issuing Bank in performing its respective duties in any way related to or arising out of its issuance of Letters of Credit, provided that no LC Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the Issuing Bank’s gross negligence or willful misconduct.
Appears in 1 contract
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Lender with a Commitment, other RC Bank than such Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.033.03, a “Participant”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks Lenders pursuant to Section 1.13 Sections 2.12 or 14.0413.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 3.03 to reflect the new Revolving Percentages of the assignor and assignee BankLender or of all Lenders with Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an such Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Lender any resulting liabilityliability to any Credit Party or any Lender.
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a3.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the applicable such Issuing Bank Lender in Dollars such Participant’s Revolving Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any such Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of such Issuing Lender such other Participant’s Revolving Percentage of any such payment.
(d) Whenever an any Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received (for the account of any such Issuing Bank Lender) any payments from the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Each Issuing Lender shall, promptly after the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions issuance of, or misuse amendment to, a Letter of Credit give the Administrative Agent and the Borrower written notice of such issuance or amendment, as the case may be, and such notice shall be accompanied by a copy of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such issued Letter of Credit or amendment, as the rights or benefits thereunder or proceeds thereofcase may be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Participant, in whole writing, of such issuance or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays amendment and in the transmission or delivery of any messages by mailevent a Participant shall so request, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make Administrative Agent shall furnish such Participant with a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control copy of such Issuing Bank, including without limitation any acts of governmentsissuance 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 Participants to make payments to the Administrative Agent for the account of an the respective Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing BankLender, any BankIssuing Lender, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any Letter of Credit, such Issuing Bank shall be deemed to have sold and transferred to each Lender with a Revolving Loan Commitment, other RC than such Issuing Bank (each such other RC BankLender, in its capacity under this Section 2.03, a “"Participant”"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage 's Adjusted Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will shall be paid payable 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 FeesFees with respect to such Letters of Credit), and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or Adjusted Percentages of the Banks Lenders pursuant to Section 1.13 or 14.0413.04 or as a result of a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 to reflect the new Revolving Adjusted Percentages of the assignor and assignee BankLender or of all Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an no Issuing Bank shall have no any obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by an any Issuing Bank under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank any resulting liabilityliability to any Credit Party or any Lender.
(c) In the event that an any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Bank the amount of such Participant’s Revolving 's Adjusted Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable such Issuing Bank in Dollars such Participant’s Revolving 's Adjusted Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Adjusted Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 Revolving Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank its Revolving Adjusted Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, such Issuing Bank such other Participant’s Revolving 's Adjusted Percentage of any such payment.
(d) Whenever an any Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each Participant which has paid its Revolving Adjusted Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Upon the Borrower and an Issuing Bankrequest of any Participant, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no each Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect furnish to such Participant copies of any documents submitted by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which issued by it and such other documentation as may prove to reasonably be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an each Issuing Bank 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bank, any BankParticipant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any The Issuing Bank of any Letter of Credit, such Issuing Bank shall be deemed Lender irrevocably agrees to have sold grant and hereby grants to each other RC Bank (each such other RC BankRevolving Lender, in its capacity under this Section 2.03, a “Participant”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation (each a “Participation”)and, to induce the extent of such Participant’s Revolving Percentage in such Letter Issuing Lender to issue Letters of Credit, each substitute letter Revolving Lender irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender, on the terms and conditions set forth below, for such Revolving Lender’s own account and risk an undivided interest equal to such Revolving Lender’s Revolving Commitment Percentage in the Issuing Lender’s obligations and rights under and in respect of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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 amount of any Facing Fees)each draft paid by the Issuing Lender thereunder. Upon any change in Each Revolving Lender agrees with the Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04, it is hereby agreed Issuing Lender that, with respect to all outstanding Letters of Credit, and Unpaid Drawings, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 to reflect the new Revolving Percentages of the assignor and assignee Bank.
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank shall have no obligation relative to the Participants other than to confirm that any documents required to be delivered under such Letter of Credit 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 Bank under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability.
(c) In the event that an Issuing Bank makes any payment a draft is paid under any Letter of Credit and for which the Borrower shall Issuing Lender is not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a)by the Borrowers in accordance with the terms of this Agreement, such Issuing Bank Revolving Lender shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Issuing Lender upon demand at the Issuing Lender’s address for the account of notices specified herein an amount equal to such Issuing Bank, the amount of such ParticipantRevolving Lender’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Commitment Percentage of the amount of such payment on draft, or any part thereof, that is not so reimbursed. Each Revolving Lender’s obligation to pay such Business Day in Dollars amount shall be absolute and in same day funds. If unconditional 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 an Issuing Bankbe affected by any circumstance, 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 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 such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
including (i) any set-off, counterclaim, recoupment, defense or other right that such Revolving Lender may have against the formIssuing Lender, validity, sufficiency, accuracy, genuineness or legal effect of any documents submitted by any party in connection with the application for and issuance of Borrowers or any drawing under such Letters of Creditother Person for any reason whatsoever, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity occurrence or sufficiency continuance of any instrument transferring a Default or assigning or purporting to transfer or assign any such Letter an Event of Credit Default or the rights or benefits thereunder or proceeds thereoffailure to satisfy any of the other conditions specified in Article IV, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays any adverse change in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex condition (financial or otherwise) of the Borrowers or any other Loan Party, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
(i) any lack of validity or enforceability breach of this Agreement or any of other Loan Document by the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right which the Borrower may have at any time against a beneficiary named in a Letter of CreditBorrowers, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bank, any Bank, other Loan Party or any other PersonRevolving Lender or (v) any other circumstance, happening or event whatsoever, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower 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 not similar to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms foregoing; provided that each Revolving Lender shall only be obligated to make any such payment in Dollars (and not any foreign currency) in accordance with the provisions of any of the Credit Documents; or
(v) the occurrence of any Default or Event of DefaultSection 3.10 hereof.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Revolving Lender with a Revolving Loan Commitment, other RC Bank than such Issuing Lender (each such other RC BankRevolving Lender, in its capacity under this Section 2.033.03, a “Revolving Participant”), and each such Revolving Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Revolving Participant’s Revolving Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or Revolving Percentages of the Banks Lenders pursuant to Section 1.13 Sections 2.12 or 14.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 3.03 to reflect the new Revolving Percentages of the assignor and assignee BankRevolving Lender or of all Revolving Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an such Issuing Bank Lender shall have no obligation relative to the Participants other Revolving Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Lender any resulting liabilityliability to any Credit Party or any Revolving Lender.
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a3.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Revolving Participant, of such failure, and each Revolving Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing Bank, Lender the amount of such Revolving Participant’s Revolving Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars the same currency as the applicable Letter of Credit was issued and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Revolving Participant required to fund a payment under a Letter of Credit, such Revolving Participant shall make available to the Administrative Agent at the Payment Office for the account of such Issuing Lender in the same currency as the applicable Issuing Bank Letter of Credit was issued such Revolving Participant’s Revolving Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Revolving Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an such Issuing BankLender, such Revolving Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds Rate. The failure of any Revolving Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Revolving Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any such Letter of Credit on the date required, as specified above, but no Revolving Participant shall be responsible for the failure of any other Revolving Participant to make available to the Administrative Agent, Agent for the account of such Issuing Lender such other Revolving Participant’s Revolving Percentage of any such payment.
(d) Whenever an any Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received (for the account of any such Issuing Bank Lender) any payments from the Revolving Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each Revolving Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Revolving Participant’s share (based upon the proportionate aggregate amount originally funded by such Revolving Percentage Participant to the aggregate amount funded by all Revolving Participants) 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) As between Each Issuing Lender shall, promptly after the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions issuance of, or misuse amendment to, a Letter of Credit give the Administrative Agent and the Borrower written notice of such issuance or amendment, as the case may be, and such notice shall be accompanied by a copy of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such issued Letter of Credit or amendment, as the rights or benefits thereunder or proceeds thereofcase may be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Revolving Participant, in whole writing, of such issuance or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays amendment and in the transmission or delivery of any messages by mailevent a Revolving Participant shall so request, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make Administrative Agent shall furnish such Revolving Participant with a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control copy of such Issuing Bank, including without limitation any acts of governmentsissuance 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 Revolving Participant a report setting forth for such preceding calendar month the aggregate daily Stated Amount available to be drawn under all outstanding Letters of Credit during such calendar month.
(g) The obligations of the Revolving Participants to make payments to the Administrative Agent for the account of an the respective Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing BankLender, any BankIssuing Lender, any Revolving Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement and Forbearance Agreement (Trico Marine Services Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit, such Issuing Bank the Letter of Credit Issuer shall be deemed to have sold and transferred to each other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”)Lender, and each such Participant Lender (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bankthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage Lender's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although the Letter of Credit Fees will Fee shall be paid payable directly to the Administrative Agent for the ratable account of the Participants Lenders as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees)) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks Lenders pursuant to Section 1.13 13.04(b) or 14.04upon a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.05 to reflect the new Revolving Percentages of the assignor assigning and assignee BankLender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank the Letter of Credit Issuer shall not have no any obligation relative to the Participants other than to confirm determine that any -12- documents required to be delivered under such Letter of Credit 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 Bank the Letter of Credit Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, misconduct shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liabilityliability to the Participants.
(c) In the event that an Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.04(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent Agent, and after receipt of such notice, the Administrative Agent will shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing Bankthe Letter of Credit Issuer, the amount of such Participant’s Revolving 's Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Percentage of such unreimbursed amount for any wrongful payment made by the Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. If the Administrative Agent so notifies, notifies any Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, 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 applicable Issuing Bank Letter of Credit Issuer such Participant’s Revolving 's Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment Unpaid Drawing available to the Administrative Agent for the account of an Issuing Bankthe Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer its Revolving Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of the Letter of Credit Issuer such other Participant’s Revolving 's Percentage of any such payment.
(d) Whenever an Issuing Bank the 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 Bank the Letter of Credit Issuer any payments from the Participants pursuant to clause (c) above, such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving 's Percentage of the principal amount of such reimbursement thereof and of interest reimbursed thereon accruing from and at the overnight Federal Funds Effective Rate after the date of the purchase of the respective Participationsparticipations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever (provided that no Participant shall be required to make payments resulting from the Letter of Credit Issuer's gross negligence or willful misconduct) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 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, any Issuing Bankthe Letter of Credit Issuer, any Bank, Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower 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, or invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Noble Corp)
Letter of Credit Participations. (ai) Immediately upon the issuance by any the Issuing Bank Lender of any Standby Letter of Credit, such the Issuing Bank Lender shall be deemed to have sold and transferred to each Lender (other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”than the Issuing Lender), and each such Participant Lender shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, in proportion to the extent of such Participant’s Revolving 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 Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)collateral therefor. Upon any change in a Lender's Pro Rata Share of the Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04Commitment, it is hereby agreed that, that with respect to all outstanding Standby Letters of Credit, and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.3(d) to reflect the new Revolving Percentages Pro Rata Share of the assignor Revolving Loan Commitment of the assigning and assignee BankLenders.
(bii) In determining whether to pay under any Standby Letter of Credit, an the Issuing Bank Lender shall have no obligation relative to the Participants Lenders other than to confirm that any documents required to be delivered under such Standby Letter of Credit appear to have been delivered and that they appear to 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 Bank Lender under or in connection with any Standby Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank Lender any resulting liabilityliability to any Lender.
(ciii) In Upon the event that an request of any Lender, the Issuing Bank makes Lender shall furnish to such Lender copies of any payment under any Standby Letter of Credit to which the Issuing Lender is party and the Borrower shall not have reimbursed such amount in full other documentation relating to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 Revolving Percentage of any payment under any Standby Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of as may reasonably be requested by such Issuing Bank 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 paymentLender.
(d) Whenever an Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(eiv) As between the Borrower on the one hand and an the Issuing BankLender 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, by the respective beneficiaries or transferees of such Standby Letters of Credit. Further, and not in limitation Without limiting the generality of the foregoing, absent neither the Issuing Lender nor any other Lender shall be responsible (except in the case of its gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible misconduct) for the following:
(iA) 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 and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(iiB) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Standby Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iiiC) failure of the beneficiary of any such Standby Letter of Credit to comply fully with conditions required in order to draw upon such Standby Letter of Credit, other than material conditions or instructions that expressly appear in such Standby Letter of Credit;
(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 be in cipherare encoded;
(ivE) errors in interpretation of technical terms;
(vF) 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;
(viG) the misapplication by the beneficiary of any such Standby Letter of Credit or of the proceeds of any drawing of any such Standby Letter of Credit; andor
(viiH) any consequences arising from causes beyond the control of such the Issuing BankLender, including without limitation any acts of governments.
(fv) The obligations of the Participants Lenders to make payments to the Administrative Agent for the account of an the Issuing Bank Lender with respect to Standby Letters of Credit 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower 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, any the Issuing BankLender, any BankLender, or any other Person, whether in connection with this Agreement, any Standby Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit)transactions;
(iiiC) any draft, certificate or any other document presented under the Standby Letter of Credit proving shall prove to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being shall prove to be untrue or inaccurate in any respect;
(ivD) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; or;
(vE) the occurrence of any Event of Default or Potential Event of Default; or
(F) the termination of this Agreement or any Commitment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Caci International Inc /De/)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Facing Agent of any Letter of Credit, such Issuing Bank Facing Agent shall be deemed to have sold and transferred to each Domestic Revolving Lender, other RC Bank than such Facing Agent (each such other RC BankLender, in its capacity under this Section 2.03SECTION 2.9(E), a “Participant”"LC PARTICIPANT"), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankFacing Agent, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Domestic Revolving Percentage Lender's Domestic 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 Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will fees shall be paid payable directly to the Administrative Agent for the ratable account of the Participants Domestic Revolving Lenders as provided in Section 3.01(bSECTION 2.9(G) and the LC Participants shall have no right to receive any portion of the facing fees), and any Facing Fees)security therefor or guaranty pertaining thereto. Upon any change in the Domestic Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04, Domestic Revolving Lenders it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid DrawingsDrawings relating to Letters of Credit, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 SECTION 2.9(E) to reflect the new Revolving Percentages Domestic Revolver Pro Rata Share of the assignor and assignee BankLender or of all Lenders with Domestic Revolving Commitments, as the case may be.
(bi) In determining whether to pay under any Letter of Credit, an Issuing Bank such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Bank any Facing Agent under or in connection with any Letter of Credit, Credit issued by it if taken or omitted in the absence of gross negligence or willful misconductmisconduct as determined by a final and non appealable decision rendered by a court of competent jurisdiction, shall not create for such Issuing Bank Facing Agent any resulting liability.
(c) In the event that an Issuing Bank makes any payment under any Letter of Credit and the liability to Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 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 such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsLender.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
(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 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, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Noveon Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Lender of any Letter of Credit, such the Issuing Bank shall be deemed to have sold and transferred to each other RC Bank (Lender, and each such other RC Bank, Lender (in its capacity under this Section 2.032.02, a “Participant”), and each such Participant ) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage Loan Commitment percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid DrawingsReimbursement Obligations relating thereto, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.24 to reflect the new Revolving Percentages Loan Commitment percentages of the assignor and assignee BankLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an the Issuing Bank Lender shall not have no any obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, Credit issued by it shall not create for such Issuing Bank Lender any resulting liabilityliability to Borrower, any Affiliate of Borrower, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of the Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that an Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a)2.23, such the Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving Loan Commitment Percentage of such unreimbursed payment in Dollars and lawful money of the United States in same day immediately available funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account such Issuing Lender in lawful money of the applicable Issuing Bank United States in immediately available funds such Participant’s Revolving Percentage Loan Commitment percentage of the amount of such payment on such Business Day in Dollars and in same day fundsDay. If and to the extent such Participant shall not have so made its Revolving Percentage Loan commitment percentage of the amount of such payment available to the Administrative Agent for the account of an such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three (3) days and at the interest rate applicable to Revolving Loans that are maintained Prime Rate Advances for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage Loan Commitment 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 Lender its Revolving Percentage Loan Commitment percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Issuing Lender such other Participant’s Revolving Percentage Loan Commitment percentage of any such payment.
(d) Whenever an the Issuing Bank Lender receives a payment of a reimbursement obligation Reimbursement Obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such the Issuing Bank Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its Revolving Percentage Loan Commitment percentage thereof, in Dollars and lawful money of the United States in same day immediately available funds, an amount equal to such Participant’s Revolving Percentage share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Upon the Borrower and an Issuing Bankrequest of any Participant, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of Agent shall furnish to such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect Participant copies of any documents submitted by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such standby Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which issued by it and such other documentation as may prove to reasonably be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not be 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower Borrowers or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bank, any BankParticipant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Loan Agreement (Qep Co Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Facing Agent of any Letter of Credit, such Issuing Bank Facing Agent shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other RC Bank than such Facing Agent (each such other RC BankLender, in its capacity under this Section 2.032.10(e), a an “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankFacing Agent, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such ParticipantMulticurrency Revolving Lender’s Revolving Percentage Multicurrency 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 Borrower Company under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will fees shall be paid payable directly to the Administrative Agent for the ratable account of the Participants LC Participant as provided in Section 3.01(b2.10(g) and the LC Participants shall have no right to receive any portion of the facing fees), and any Facing Fees)security therefor or guarantee pertaining thereto. Upon any change in the Multicurrency Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04Multicurrency Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid DrawingsDrawings relating to Letters of Credit, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 2.10(e) to reflect the new Revolving Percentages Multicurrency Revolver Pro Rata Share of the assignor and assignee Bank.
(b) Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may be. In determining whether to pay under any Letter of Credit, an Issuing Bank such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Bank any Facing Agent under or in connection with any Letter of Credit, Credit issued by it if taken or omitted in the absence of gross negligence or willful misconductmisconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Issuing Bank Facing Agent any resulting liability.
(c) In the event that an Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full liability to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 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 such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Company or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsLender.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
(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 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, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Greif Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold to each other RC Bank Revolving Lender (each such other RC BankRevolving Lender, in its capacity under this Section 2.033.04, a “Participant”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving 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 (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)thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Banks Lenders pursuant to Section 1.13 2.13, 2.15, 2.17 or 14.0412.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 3.04 to reflect the new Revolving RL Percentages of the assignor and assignee BankLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an no Issuing Bank Lender shall have no 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 Bank Lender under or in connection with any Letter of CreditCredit issued by it shall not create for an Issuing Lender any resulting liability to any Revolving Borrower, if any other Credit Party, any Participant or any other Lender unless such action is taken or omitted in the absence of to be taken with gross negligence or willful misconduct, shall not create for misconduct on the part of such Issuing Bank any resulting liabilityLender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such the respective Issuing BankLender, the amount of such Participant’s Revolving 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. (New York timeLocal 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 applicable respective Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day Lender in Dollars and 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 an 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 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 such Issuing Bank 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.109 150546217_8170136845_8
(d) Whenever an Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its Revolving 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 Revolving Percentage share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Upon the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect request of any documents submitted by any party in connection with the application for and issuance of or any drawing under Participant, each Issuing Lender shall furnish to such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency Participant copies of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which issued by it and such other documentation as may prove to reasonably be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of an each Issuing Bank 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
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 the Borrower any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any such Issuing BankLender, any Bank, Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower 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.110 150546217_8170136845_8
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any Letter of Credit, such Issuing Bank shall be deemed to have sold and transferred to each Bank with a Revolving Loan Commitment, other RC than such Issuing Bank (each such other RC Bank, in its capacity under this Section 2.03, a “"Participant”"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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 of the Banks pursuant to Section 1.13 or 14.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, and Unpaid Drawings, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 to reflect the new Revolving Percentages of the assignor and assignee Bank.'s Adjusted RL
(b) In determining whether to pay under any Letter of Credit, an such Issuing Bank shall have no obligation relative to the Participants other Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Bank under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liabilityliability to the Borrower or any Bank.
(c) In the event that an any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such noticeManaging Agent, the Administrative Agent will which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Bank the amount of such Participant’s Revolving 's Adjusted RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Managing Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the applicable such Issuing Bank in Dollars such Participant’s Revolving 's Adjusted RL Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Adjusted RL Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 Revolving 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 the Administrative Agent for the account of such Issuing Bank its Revolving Adjusted 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 Revolving Percentage of any such payment.specified
(d) Whenever an any Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Adjusted RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an each Issuing Bank 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Managing Agent, any Issuing Bank, any BankParticipant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the 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 (Chancellor Radio Broadcasting Co)
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank of any Letter of Credit, such the Issuing Bank shall be deemed to have sold and transferred to each Bank with a Revolving Credit Commitment, other RC than the Issuing Bank (each such other RC BankLender, in its capacity under this Section 2.032.14, a “an "LC Participant”"), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Bank, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such LC Participant’s Revolving Percentage 's RL Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Credit Commitments or RL Percentages of the Banks Lenders pursuant to Section 1.13 or 14.04this Agreement, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 to reflect the new Revolving RL Percentages of the assignor and assignee BankLender.
(b) In determining whether to pay under any Letter of Credit, an the Issuing Bank shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Bank under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction, shall not create for such Issuing Bank any resulting liabilityliability to the Borrower or any Lender.
(c) In the event that an any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such the Issuing Bank pursuant to Section 2.04(a2.15(a), such the Issuing Bank shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant LC Participant, of such failure, and each LC Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Bank the amount of such LC Participant’s Revolving 's RL Percentage of such unreimbursed payment in Dollars U.S. dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank in U.S. dollars such LC Participant’s Revolving 's RL Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such LC Participant shall not have so made its Revolving RL Percentage of the amount of such payment available to the Administrative Agent for the account of an Issuing Bank, such LC 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 LC Participant to make available to the Administrative Agent for the account of such Issuing Bank its Revolving RL Percentage of any payment under any Letter of Credit shall not relieve any other LC Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank its Revolving RL Percentage 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 the Administrative Agent, Issuing Bank such other LC Participant’s Revolving 's RL Percentage of any such payment.
(d) Whenever an the Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the LC Participants pursuant to clause (c) above, such the Issuing Bank shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each LC Participant which has paid its Revolving RL Percentage thereof, in Dollars U.S. dollars and in same day funds, an amount equal to such LC Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Upon the Borrower and an Issuing Bankrequest of any LC Participant, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect furnish to such LC Participant copies of any documents submitted by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which issued by it and such other documentation as may prove to reasonably be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the LC Participants to make payments to the Administrative Agent for the account of an Issuing Bank 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any the Issuing Bank, any BankLC Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Usi Holdings Corp)
Letter of Credit Participations. (ai) Immediately upon the issuance by any Issuing Bank Facing Agent of any Letter of Credit, such Issuing Bank Facing Agent shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other RC Bank than such Facing Agent (each such other RC BankLender, in its capacity under this Section 2.032.10(e), a “"LC Participant”"), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankFacing Agent, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Multicurrency Revolving Percentage Lender's Multicurrency 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 Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will fees shall be paid payable directly to the Administrative Agent for the ratable account of the Participants LC Participant as provided in Section 3.01(b2.10(g) and the LC Participants shall have no right to receive any portion of the facing fees), and any Facing Fees)security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04Multicurrency Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid DrawingsDrawings relating to Letters of Credit, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 2.10(e) to reflect the new Revolving Percentages Multicurrency Revolver Pro Rata Share of the assignor and assignee BankLender or of all Lenders with Multicurrency Revolving Commitments, as the case may be.
(bii) In determining whether to pay under any Letter of Credit, an Issuing Bank such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Bank any Facing Agent under or in connection with any Letter of Credit, Credit issued by it if taken or omitted in the absence of gross negligence or willful misconductmisconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Issuing Bank Facing Agent any resulting liability.
(c) In the event that an Issuing Bank makes liability to any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 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 such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsLender.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
(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 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, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Ball Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any The Issuing Bank of any Letter of Credit, such Issuing Bank shall be deemed Lender irrevocably agrees to have sold grant and hereby grants to each other RC Bank (each such other RC BankRevolving Lender, in its capacity under this Section 2.03, a “Participant”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation (each a “Participation”)and, to induce the extent of such Participant’s Revolving Percentage in such Letter Issuing Lender to issue Letters of Credit, each substitute letter Revolving Lender irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender, on the terms and conditions set forth below, for such Revolving Lender’s own account and risk an undivided interest equal to such Revolving Lender’s Revolving Commitment Percentage in the Issuing Lender’s obligations and rights under and in respect of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will be and the amount of each draft paid directly by the Issuing Lender thereunder. Each Revolving Lender agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit for which the Issuing Lender is not reimbursed in full by the Borrowers in accordance with the terms of this Agreement, such Revolving Lender shall pay to the Administrative Agent Issuing Lender upon demand at the Issuing Lender’s address for the ratable account notices specified herein an amount equal to such Revolving Lender’s Revolving Commitment Percentage of the Participants as provided amount of such draft, or any part thereof, that is not so reimbursed. Each Revolving Lender’s obligation to pay such amount shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right that such Revolving Lender may have against the Issuing Lender, the Borrowers or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Section 3.01(bArticle IV, (iii) and the Participants shall have no right to receive any portion of any Facing Fees). Upon any adverse change in the Revolving Loan Commitments condition (financial or otherwise) of the Banks pursuant Borrowers or any other Loan Party, (iv) any breach of this Agreement or any other Loan Document by the Borrowers, any other Loan Party or any other Revolving Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to Section 1.13 or 14.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, and Unpaid Drawings, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 to reflect the new Revolving Percentages any of the assignor foregoing; provided that each Revolving Lender shall only be obligated to make any such payment in Dollars (and assignee Banknot any foreign currency) in accordance with the provisions of Section 3.10 hereof.
(b) In determining whether If any amount required to pay be paid by any Revolving Lender to the Issuing Lender pursuant to Section 3.04(a) in respect of any unreimbursed portion of any payment made by the Issuing Lender under any Letter of Credit, an Issuing Bank shall have no obligation relative Credit is paid to the Participants other than Issuing Lender within three Business Days after the date such payment is due, such Revolving Lender shall pay to confirm the Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to the Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any documents such amount required to be delivered paid by any Revolving Lender pursuant to Section 3.04(a) is not made available to the Issuing Lender by such Revolving Lender within three Business Days after the date such payment is due, the Issuing Lender shall be entitled to recover from such Revolving Lender, on demand, such amount with interest thereon calculated from such due date at the rate per annum set forth in Section 2.08(a)(i) or Section 2.08(c)(i), as applicable, applicable to Base Rate Advances. A certificate of the Issuing Lender submitted to any Revolving Lender with respect to any amounts owing under such Letter of Credit 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 this Section shall be taken by an Issuing Bank under or in connection with any Letter of Credit, if taken or omitted conclusive in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liabilitymanifest error.
(c) In Whenever, at any time after the event that an Issuing Bank makes any Lender has made payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s has received from any Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount Lender its pro rata share of such payment on such Business Day in Dollars and in same day funds. If and to accordance with Section 3.04(a), 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 an 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 Revolving Percentage of Lender receives any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder related to make available to the Administrative Agent for the account of such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or (whether directly from the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex applicable Borrower or otherwise, whether or not they be in cipher;
(iv) errors in interpretation including proceeds of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication collateral applied thereto by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing BankLender), including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense payment of interest on account thereof, the Issuing Lender will distribute to such Revolving Lender its pro rata share thereof (appropriately adjusted to reflect whether such payment is owed to a Non-Extending Lender (including a 2015 Non-Extending Lender) or any other qualification or exception whatsoever an Extending Lender (including a 2015 Extending Lender) and shall be made whether the corresponding interest rate owed to such Lender is calculated in accordance with the terms and conditions of this Agreement under all circumstancesSection 2.08(a) or 2.08(c)); provided, includinghowever, without limitation, any of the following circumstances (other than that in the case of gross negligence or willful misconduct of such Issuing Bank):
(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 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 event that any such transferee may payment received by the Issuing Lender shall be acting), the Administrative Agent, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 required to be forgedreturned by the Issuing Lender, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) such Revolving Lender shall return to the surrender or impairment of any security for Issuing Lender the performance or observance of any of portion thereof previously distributed by the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of DefaultIssuing Lender to it.
Appears in 1 contract
Letter of Credit Participations. (aPromptly following receipt of a Notice of L/C Disbursement pursuant to Section 2.3(b) Immediately upon and the conversion of such L/C Disbursement into a Loan, each Lender agrees to fund to the L/C Issuer its Commitment Percentage of any Loan deemed made pursuant to the foregoing subsection on the same terms and conditions as if the Borrower had requested such Loan. By the issuance by any Issuing Bank of any a Letter of CreditCredit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the L/C Issuer or the Lenders, such Issuing Bank the L/C Issuer shall be deemed to have sold granted to each other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”)Lender, and each such Participant Lender shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bankpurchased, without recourse or warranty, an undivided interest and a participation in each Letter of Credit (each a “Letter of Credit Participation”), in an amount equal to the extent its Commitment Percentage of such Participant’s Revolving Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the all obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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 of the Banks pursuant to Section 1.13 or 14.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, and Unpaid Drawings, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 to reflect the new Revolving Percentages of the assignor and assignee Bank.
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank shall have no obligation relative to the Participants other than to confirm that any documents required to be delivered under such Letter of Credit have been delivered (including reimbursement obligations, Contingent Obligations and that they appear to substantially comply on their face with accrued and unpaid interest, fees and expenses). In consideration and in furtherance of the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Bank under or in connection with any Letter of Creditforegoing, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability.
(c) In the event that an Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly Lender hereby absolutely and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an Issuing Bank, such Participant agrees to pay to the Administrative Agent L/C Issuer, such Lender’s Commitment Percentage of each L/C Disbursement made by the L/C Issuer and not reimbursed by the Borrower (the “Unpaid Reimbursement Obligations”) on the date due as provided in Section 2.3(b), or of any reimbursement payment required to be refunded to the Borrower for the account any reason. If any Lender shall fail to make any payment 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 Revolving Lender’s Commitment Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to then Unpaid Reimbursement Obligations in accordance with the Administrative Agent for the account of such Issuing Bank its Revolving Percentage of any payment under any Letter of Credit on the date requiredforegoing sentence, 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) As between then the Borrower and an Issuing Bankshall immediately, upon demand by the Borrower assumes L/C Issuer, Cash Collateralize all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such then outstanding Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
(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 If the Borrower may have at any time against reimburses the L/C Issuer for any L/C Disbursement, then any amounts already funded by a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (Lender to the L/C Issuer relating to such L/C Disbursement shall be promptly returned by the L/C Issuer to the applicable Lender or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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; or
(v) the occurrence of any Default or Event of DefaultLenders.
Appears in 1 contract
Samples: Dip Credit Agreement
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank of any Letter of Credit, such Issuing Bank shall be deemed to have sold and transferred to each Lender with a Revolving Loan Commitment, other RC than such Issuing Bank (each such other RC BankLender, in its capacity under this Section 2.03, a “Participant”"PARTICIPANT"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage 's Adjusted Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will shall be paid payable 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 FeesFees with respect to such Letters of Credit), and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or Adjusted Percentages of the Banks Lenders pursuant to Section 1.13 or 14.0413.04 or as a result of a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 to reflect the new Revolving Adjusted Percentages of the assignor and assignee BankLender or of all Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an no Issuing Bank shall have no any obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by an any Issuing Bank under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank any resulting liabilityliability to any Credit Party or any Lender.
(c) In the event that an any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Bank the amount of such Participant’s Revolving 's Adjusted Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable such Issuing Bank in Dollars such Participant’s Revolving 's Adjusted Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Adjusted Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 Revolving Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank its Revolving Adjusted Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, such Issuing Bank such other Participant’s Revolving 's Adjusted Percentage of any such payment.
(d) Whenever an any Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each Participant which has paid its Revolving Adjusted Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Upon the Borrower and an Issuing Bankrequest of any Participant, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no each Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect furnish to such Participant copies of any documents submitted by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which issued by it and such other documentation as may prove to reasonably be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an each Issuing Bank 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bank, any BankParticipant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Pca Valdosta Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Letter of any Credit Issuer of a Letter of Credit, such Issuing Bank Letter of Credit Issuer shall be deemed to have sold and transferred to each other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, with a “Participant”)Commitment, and each such Participant Bank (each an "L/C Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage Bank's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although the Letter of Credit Fees will Fee shall be paid payable directly to the Administrative Agent for the ratable account of the Participants Banks as provided in Section 3.01(b2.7(c) and the L/C Participants shall have no right to receive any portion of any Facing Fronting Fees)) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks pursuant to Section 1.13 or 14.0411.6(c), it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2A.5 to reflect the new Revolving Percentages of the assignor assigning and assignee BankBank or of all Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank the respective Letter of Credit Issuer shall not have no any obligation relative to the L/C Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit 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 Bank any Letter of Credit Issuer under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, misconduct (as determined by a court of competent jurisdiction) shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability.
(c) In the event that an Issuing Bank the respective Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Letter of Credit Issuer pursuant to Section 2.04(a2A.4(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent Agent, and after receipt of such notice, the Administrative Agent will shall promptly notify each L/C Participant of such failure, and each L/C Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing BankLetter of Credit Issuer, the amount of such L/C Participant’s Revolving 's Percentage of such unreimbursed payment in Dollars the currency of such payment and in same day funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent its Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence (as determined by a court of competent jurisdiction) on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies, notifies any L/C Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. (New York Chicago time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent for the account of the applicable Issuing Bank respective Letter of Credit Issuer (which funds the Administrative Agent shall promptly forward to the Letter of Credit Issuer) such Participant’s Revolving 's Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such L/C Participant shall not have so made its Revolving Percentage of the amount of such payment Unpaid Drawing available to the Administrative Agent for the account of an Issuing Banksuch Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer at the overnight Federal Funds Ratecost to the Administrative Agent of funding the amount so advanced by the Administrative Agent to fund such Bank's amount, as determined by the Administrative Agent. The failure of any L/C Participant to make available to the Administrative Agent for the account of such Issuing Bank the respective Letter of Credit Issuer its Revolving Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other L/C Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank the respective Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent, Agent for the account of such Letter of Credit Issuer such other L/C Participant’s Revolving 's Percentage of any such payment.
(d) Whenever an Issuing Bank the respective 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 Bank Letter of Credit Issuer any payments from the L/C Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each L/C Participant which has paid its Revolving Percentage thereof, in Dollars the applicable currency, and in same day funds, an amount equal to such L/C Participant’s Revolving 's Percentage of the principal amount of such reimbursement thereof and of interest reimbursed thereon accruing from and at the Federal Funds Rate, in the case of U.S. Dollars, or at the cost to the Administrative Agent of funding the amount so advanced by the Administrative Agent to fund such amount, as determined by the Administrative Agent after the date of the purchase of the respective Participationsparticipations, in the case of Canadian Dollars.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the L/C Participants to make payments to the Administrative Agent for the account of an Issuing Bank the respective Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever (provided that no L/C Participant shall be required to make payments resulting from the Letter of Credit Issuer's gross negligence or willful misconduct (as determined by a court of competent jurisdiction)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of it Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bankthe respective Letter of Credit Issuer, any Bank, Bank or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the respective Letter of Credit Issuer is not indemnified for same by the Borrower, the L/C Participants will reimburse and indemnify the Letter of Credit Issuer, in proportion to their respective Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such Letter of Credit Issuer in performing its respective duties in any way relating to or arising out of its issuance of Letters of Credit; provided that no L/C Participant shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Letter of Credit Issuer's gross negligence or willful misconduct (as determined by a court of competent jurisdiction).
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Lender of any Letter of Credit, such the Issuing Bank Lender shall be deemed to have sold and transferred to each R/C Lender, other RC Bank than the Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.032.20, a “"Participant”"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage 's Ratable Portion, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect theretothereto (excluding the Facing Fee), and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Credit Commitments of the Banks pursuant to Section 1.13 or 14.04R/C Lenders, it is hereby agreed that, with respect to all any outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.20 to reflect the new Revolving Percentages Ratable Portions of the assignor and assignee BankR/C Lenders.
(b) In determining whether to pay under any Letter of Credit, an the Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank Lender any resulting liabilityliability to the Borrower or any Lender.
(c) In the event that an the Issuing Bank Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such the Issuing Bank Lender pursuant to Section 2.04(a2.21(a), such the Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving Percentage 's Ratable Portion of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, notifies any Participant prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available such funds to the Administrative Agent for the account of the applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment Lender on such Business Day in Dollars and in same day fundsDay. If and to the extent such Participant shall not have so made its Revolving Percentage Ratable Portion of the amount of such payment available to the Administrative Agent for the account of an Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage Ratable Portion of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
(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 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, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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; or
(v) the occurrence of any Default or Event of Default.to
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Letter of any Credit Issuer of a Letter of Credit, such Issuing Bank Letter of Credit Issuer shall be deemed to have sold and transferred to each other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, with a “Participant”)Commitment, and each such Participant Bank (each an “L/C Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such ParticipantBank’s Revolving Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although the Letter of Credit Fees will Fee shall be paid payable directly to the Administrative Agent for the ratable account of the Participants Banks as provided in Section 3.01(b2.7(c) and the L/C Participants shall have no right to receive any portion of any Facing Fronting Fees)) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks pursuant to Section 1.13 or 14.0410.6(c), it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2A.5 to reflect the new Revolving Percentages of the assignor assigning and assignee BankBank or of all Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank the respective Letter of Credit Issuer shall not have no any obligation relative to the L/C Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit 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 Bank any Letter of Credit Issuer under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, misconduct (as determined by a court of competent jurisdiction) shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability.
(c) In the event that an Issuing Bank the respective Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Letter of Credit Issuer pursuant to Section 2.04(a2A.4(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent Agent, and after receipt of such notice, the Administrative Agent will shall promptly notify each L/C Participant of such failure, and each L/C Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing BankLetter of Credit Issuer, the amount of such L/C Participant’s Revolving Percentage of such unreimbursed payment in Dollars the currency of such payment and in same day funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent its Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence (as determined by a court of competent jurisdiction) on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies, notifies any L/C Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. a.m. (New York Chicago, Illinois time) on any Business Day, any 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 applicable Issuing Bank respective Letter of Credit Issuer (which funds the Administrative Agent shall promptly forward to the Letter of Credit Issuer) such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such L/C Participant shall not have so made its Revolving Percentage of the amount of such payment Unpaid Drawing available to the Administrative Agent for the account of an Issuing Banksuch Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer at the overnight Federal Funds Ratecost to the Administrative Agent of funding the amount so advanced by the Administrative Agent to fund such Bank’s amount, as determined by the Administrative Agent. The failure of any L/C Participant to make available to the Administrative Agent for the account of such Issuing Bank the respective Letter of Credit Issuer its Revolving Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other L/C Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank the respective Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent, Agent for the account of such Letter of Credit Issuer such other L/C Participant’s Revolving Percentage of any such payment.
(d) Whenever an Issuing Bank the respective 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 Bank Letter of Credit Issuer any payments from the L/C Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each L/C Participant which has paid its Revolving Percentage thereof, in Dollars the applicable currency, and in same day funds, an amount equal to such L/C Participant’s Revolving Percentage of the principal amount of such reimbursement thereof and of interest reimbursed thereon accruing from and at the Federal Funds Rate, in the case of U.S. Dollars, or at the cost to the Administrative Agent of funding the amount so advanced by the Administrative Agent to fund such amount, as determined by the Administrative Agent after the date of the purchase of the respective Participationsparticipations, in the case of Canadian Dollars.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the L/C Participants to make payments to the Administrative Agent for the account of an Issuing Bank the respective Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever (provided that no L/C Participant shall be required to make payments resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of it Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bankthe respective Letter of Credit Issuer, any Bank, Bank or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the respective Letter of Credit Issuer is not indemnified for same by the Borrower, the L/C Participants will reimburse and indemnify the Letter of Credit Issuer, in proportion to their respective Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such Letter of Credit Issuer in performing its respective duties in any way relating to or arising out of its issuance of Letters of Credit; provided that no L/C Participant shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Letter of Credit Issuer’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction).
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Letter of any Credit Issuer of a Letter of Credit, such Issuing Bank Letter of Credit Issuer shall be deemed to have sold and transferred to each other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, with a “Participant”)Commitment, and each such Participant Bank (each an "L/C Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage Bank's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although the Letter of Credit Fees will Fee shall be paid payable directly to the Administrative Agent for the ratable account of the Participants Banks as provided in Section 3.01(b2.7(c) and the L/C Participants shall have no right to receive any portion of any Facing Fronting Fees)) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks pursuant to Section 1.13 or 14.0411.6(c), it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2A.5 to reflect the new Revolving Percentages of the assignor assigning and assignee BankBank or of all Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank the respective Letter of Credit Issuer shall not have no any obligation relative to the L/C Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit 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 Bank any Letter of Credit Issuer under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, misconduct (as determined by a court of competent jurisdiction) shall not create for such Issuing Bank Letter of Credit Issuer any resulting liability.
(c) In the event that an Issuing Bank the respective Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Letter of Credit Issuer pursuant to Section 2.04(a2A.4(a), such Issuing Bank Letter of Credit Issuer shall promptly notify the Administrative Agent Agent, and after receipt of such notice, the Administrative Agent will shall promptly notify each L/C Participant of such failure, and each L/C Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing BankLetter of Credit Issuer, the amount of such L/C Participant’s Revolving 's Percentage of such unreimbursed payment in Dollars and in same day funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent 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 (as determined by a court of competent jurisdiction) on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies, notifies any L/C Participant required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. (New York Chicago time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent for the account of the applicable Issuing Bank respective Letter of Credit Issuer (which funds the Administrative Agent shall promptly forward to the Letter of Credit Issuer) such Participant’s Revolving 's Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such L/C Participant shall not have so made its Revolving Percentage of the amount of such payment Unpaid Drawing available to the Administrative Agent for the account of an Issuing Banksuch Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLetter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any L/C Participant to make available to the Administrative Agent for the account of such Issuing Bank the respective Letter of Credit Issuer its Revolving Percentage of any payment Unpaid Drawing under any Letter of Credit shall not relieve any other L/C Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank the respective Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent, Agent for the account of such Letter of Credit Issuer such other L/C Participant’s Revolving 's Percentage of any such payment.
(d) Whenever an Issuing Bank the respective 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 Bank Letter of Credit Issuer any payments from the L/C Participants pursuant to clause (c) above, such Issuing Bank Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each L/C Participant which has paid its Revolving Percentage thereof, in Dollars US Dollars, and in same day funds, an amount equal to such L/C Participant’s Revolving 's Percentage of the principal amount of such reimbursement thereof and of interest reimbursed thereon accruing from and at the Federal Funds Rate after the date of the purchase of the respective Participationsparticipations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the L/C Participants to make payments to the Administrative Agent for the account of an Issuing Bank the respective Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever (provided that no L/C Participant shall be required to make payments resulting from the Letter of Credit Issuer's gross negligence or willful misconduct (as determined by a court of competent jurisdiction)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of it Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bankthe respective Letter of Credit Issuer, any Bank, Bank or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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 the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the respective Letter of Credit Issuer is not indemnified for same by the Borrower, the L/C Participants will reimburse and indemnify the Letter of Credit Issuer, in proportion to their respective Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such Letter of Credit Issuer in performing its respective duties in any way relating to or arising out of its issuance of Letters of Credit; provided that no L/C Participant shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Letter of Credit Issuer's gross negligence or willful misconduct (as determined by a court of competent jurisdiction).
Appears in 1 contract
Letter of Credit Participations. (ai) Immediately upon the issuance by any the Issuing Bank Lender of any Standby Letter of Credit, such the Issuing Bank Lender shall be deemed to have sold and transferred to each Lender (other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”than the Issuing Lender), and each such Participant Lender shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, in proportion to the extent of such Participant’s Revolving 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 Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)collateral therefor. Upon any change in a Lender's Pro Rata Share of the Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04Commitment, it is hereby agreed that, that with respect to all outstanding Standby Letters of Credit, and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.3(d) to reflect the new Revolving Percentages Pro Rata Share of the assignor Revolving Loan Commitment of the assigning and assignee BankLenders.
(bii) In determining whether to pay under any Standby Letter of Credit, an the Issuing Bank Lender shall have no obligation relative to the Participants Lenders other than to confirm that any documents required to be delivered under such Standby Letter of Credit appear to have been delivered and that they appear to 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 Bank Lender under or in connection with any Standby Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank Lender any resulting liabilityliability to any Lender.
(ciii) In Upon the event that an request of any Lender, the Issuing Bank makes Lender shall furnish to such Lender copies of any payment under any Standby Letter of Credit to which the Issuing Lender is party and the Borrower shall not have reimbursed such amount in full other documentation relating to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 Revolving Percentage of any payment under any Standby Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of as may reasonably be requested by such Issuing Bank 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 paymentLender.
(d) Whenever an Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(eiv) As between the Borrower on the one hand and an the Issuing BankLender and the Lenders on the other hand, the Borrower assumes all risks of the acts and omissions of, or misuse of of, the Standby Letters of Credit by, by the respective beneficiaries or transferees of such Standby Letters of Credit. Further, and not in limitation Without limiting the generality of the foregoing, absent neither the Issuing Lender nor any other Lender shall be responsible (except in the case of its gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible misconduct) for the following:
(iA) 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 and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(iiB) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Standby Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iiiC) failure of the beneficiary of any such Standby Letter of Credit to comply fully with conditions required in order to draw upon such Standby Letter of Credit, other than material conditions or instructions that expressly appear in such Standby Letter of Credit;
(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 be in cipherare encoded;
(ivE) errors in interpretation of technical terms;
(vF) 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;
(viG) the misapplication by the beneficiary of any such Standby Letter of Credit or of the proceeds of any drawing of any such Standby Letter of Credit; andor
(viiH) any consequences arising from causes beyond the control of such the Issuing BankLender, including without limitation any acts of governments.
(fv) The obligations of the Participants Lenders to make payments to the Administrative Agent for the account of an the Issuing Bank Lender with respect to Standby Letters of Credit 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Standby Letter of Credit, any transferee of any Standby Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any the Issuing BankLender, any BankLender, or any other Person, whether in connection with this Agreement, any Standby Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit)transactions;
(iiiC) any draft, certificate or any other document presented under the Standby Letter of Credit proving shall prove to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being shall prove to be untrue or inaccurate in any respect;
(ivD) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or;
(vE) the occurrence of any Event of Default or Potential Event of Default; or
(F) the termination of this Agreement or any Commitment.
Appears in 1 contract
Letter of Credit Participations. (ai) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Lender, other RC Bank than such Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.032.13(c), a “"Participant”"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage 's Commitment Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments Commitment Percentages of the Banks Lenders pursuant to Section 1.13 or 14.04hereto, it is hereby agreed that, with respect to all outstanding Letters Letter of Credit, Credit Outstandings and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.13(c) to reflect the new Revolving Commitment Percentages of the assignor and assignee BankLender or of all Lenders, as the case may be.
(bii) In determining whether to pay under any Letter of Credit, an the respective Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank Lender any resulting liabilityliability to the Borrower or any Lender.
(ciii) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a2.13(d)(i), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving 's Commitment Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, notifies any Participant prior to 11:00 A.M. (New York Boston 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 for the account of the applicable such Issuing Bank such Participant’s Revolving Percentage of the amount of such payment Lender on such Business Day in Dollars and in same day fundsDay. If and to the extent such Participant shall not have so made its Revolving Commitment Percentage of the amount of such payment available to the Administrative Agent for the account of an such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds Ratefederal funds rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Commitment 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 Lender its Revolving Commitment Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, such Issuing Lender such other Participant’s Revolving 's Commitment Percentage of any such payment.
(div) Whenever an any Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each Participant which has paid its Revolving Commitment Percentage thereof, in Dollars United States dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in Upon the transmission or otherwise request of any document required in order Participant, each Issuing Lender shall furnish to make a drawing under such Participant copies of any such Letter of Credit or the proceeds thereof;issued by it and such other documentation as may reasonably be requested by such Participant.
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an each Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and and, except as provided in Section 2.13(c)(ii), 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):circumstances:
(iA) any lack of validity or enforceability of this Agreement or any of the other Credit DocumentsLender Agreement;
(iiB) the existence of any claim, set-offsetoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing BankLender, any BankParticipant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iiiC) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(ivD) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit DocumentsLender Agreements; or
(vE) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Saucony Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Lender of any Letter of Credit, such the Issuing Bank shall be deemed to have sold and transferred to each other RC Bank (Lender, and each such other RC Bank, Lender (in its capacity under this Section 2.032.02, a “"Participant”), and each such Participant ") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s 's Revolving Percentage Loan Commitment percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid DrawingsReimbursement Obligations relating thereto, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.24 to reflect the new Revolving Percentages Loan Commitment percentages of the assignor and assignee BankLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an the Issuing Bank Lender shall not have no any obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, Credit issued by it shall not create for such Issuing Bank Lender any resulting liabilityliability to the Borrower, any Affiliate of the Borrower, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of the Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that an Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a)2.23, such the Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s 's Revolving Loan Commitment Percentage of such unreimbursed payment in Dollars and lawful money of the United States in same day immediately available funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account such Issuing Lender in lawful money of the applicable Issuing Bank United States in immediately available funds such Participant’s 's Revolving Percentage Loan Commitment percentage of the amount of such payment on such Business Day in Dollars and in same day fundsDay. If and to the extent such Participant shall not have so made its Revolving Percentage Loan commitment percentage of the amount of such payment available to the Administrative Agent for the account of an such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three (3) days and at the interest rate applicable to Revolving Loans that are maintained Prime Rate Advances for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage Loan Commitment 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 Lender its Revolving Percentage Loan Commitment percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Issuing Lender such other Participant’s 's Revolving Percentage Loan Commitment percentage of any such payment.
(d) Whenever an the Issuing Bank Lender receives a payment of a reimbursement obligation Reimbursement Obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such the Issuing Bank Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its Revolving Percentage Loan Commitment percentage thereof, in Dollars and lawful money of the United States in same day immediately available funds, an amount equal to such Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Upon the Borrower and an Issuing Bankrequest of any Participant, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of Agent shall furnish to such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect Participant copies of any documents submitted by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such standby Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which issued by it and such other documentation as may prove to reasonably be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not be 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower Borrowers or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bank, any BankParticipant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Loan Agreement (Qep Co Inc)
Letter of Credit Participations. (ai) Immediately upon the issuance by any Issuing Bank Facing Agent of any Letter of Credit, such Issuing Bank Facing Agent shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other RC Bank than such Facing Agent (each such other RC BankLender, in its capacity under this Section 2.032.10(e), a “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankFacing Agent, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such ParticipantMulticurrency Revolving Lender’s Revolving Percentage Multicurrency Revolver Pro Rata Share, in such Letter of Credit, each substitute letter of credit, each drawing Drawing made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will fees shall be paid payable directly to the Administrative Agent for the ratable account of the Participants LC Participant as provided in Section 3.01(b2.10(g) and the LC Participants shall have no right to receive any portion of the facing fees), and any Facing Fees)security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04Multicurrency Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid DrawingsDrawings relating to Letters of Credit, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 2.10(e) to reflect the new Revolving Percentages Multicurrency Revolver Pro Rata Share of the assignor and assignee BankLender or of all Lenders with Multicurrency Revolving Commitments, as the case may be.
(bii) In determining whether to pay under any Letter of Credit, an Issuing Bank such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Bank any Facing Agent under or in connection with any Letter of Credit, Credit issued by it if taken or omitted in the absence of gross negligence or willful misconductmisconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Issuing Bank Facing Agent any resulting liability.
(c) In the event that an Issuing Bank makes liability to any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 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 such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsLender.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
(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 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, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Ball Corp)
Letter of Credit Participations. (ai) Immediately upon the issuance by any Issuing Bank Facing Agent of any Letter of Credit, such Issuing Bank Facing Agent shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other RC Bank than such Facing Agent (each such other RC BankLender, in its capacity under this Section 2.032.10(e), a “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankFacing Agent, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such ParticipantMulticurrency Revolving Lender’s Revolving Percentage Multicurrency Revolver Pro Rata Share, in such Letter of Credit, each substitute letter of credit, each drawing Drawing made thereunder and the obligations of the applicable Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will fees shall be paid payable directly to the Administrative Agent for the ratable account of the Participants LC Participant as provided in Section 3.01(b2.10(g) and the LC Participants shall have no right to receive any portion of the facing fees), and any Facing Fees)security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04Multicurrency Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid DrawingsDrawings relating to Letters of Credit, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 2.10(e) to reflect the new Revolving Percentages Multicurrency Revolver Pro Rata Share of the assignor and assignee BankLender or of all Lenders with Multicurrency Revolving Commitments, as the case may be.
(bii) In determining whether to pay under any Letter of Credit, an Issuing Bank such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Bank any Facing Agent under or in connection with any Letter of Credit, Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconductmisconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Issuing Bank Facing Agent any resulting liability.
(c) In the event that an Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full liability to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 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 such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Company or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsLender.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
(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 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, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Ball Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Lender of any Letter of Credit, such the Issuing Bank Lender shall be deemed to have sold and transferred to each Lender, other RC Bank than the Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.032.19, a “"Participant”"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage 's Ratable Portion, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect theretothereto (excluding the Facing Fee), and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Credit Commitments of the Banks pursuant to Section 1.13 or 14.04Lenders, it is hereby agreed that, with respect to all any outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.19 to reflect the new Revolving Percentages Ratable Portions of the assignor and assignee BankLenders.
(b) In determining whether to pay under any Letter of Credit, an the Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank Lender any resulting liabilityliability to the Borrower or any Lender.
(c) In the event that an the Issuing Bank Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such the Issuing Bank Lender pursuant to Section 2.04(a2.20(a), such the Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving Percentage 's Ratable Portion of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, notifies any Participant prior to 11:00 11: 00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available such funds to the Administrative Agent for the account of the applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment Lender on such Business Day in Dollars and in same day fundsDay. If and to the extent such Participant shall not have so made its Revolving Percentage Ratable Portion of the amount of such payment available to the Administrative Agent for the account of an Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage Ratable Portion of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage Ratable Portion of any payment under any such Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Issuing Lender such other Participant’s Revolving Percentage 's Ratable Portion of any such payment.
(d) Whenever an the Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, the Issuing Lender shall forward such Issuing Bank shall pay payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute such funds to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage accordance with the terms of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective ParticipationsSection 2.13.
(e) As between Upon the Borrower and an Issuing Bankrequest of any Participant, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of Issuing Lender shall furnish to such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect Participant copies of any documents submitted by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which issued by it and such other documentation as may prove to reasonably be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any the Issuing BankLender, any BankParticipant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (ai) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”)Revolving Lender, and each such Participant Revolving Lender shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each participation, in a “Participation”)percentage equal to such Revolving Lender's Revolving Percentage, to the extent of such Participant’s Revolving Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto thereto.
(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(bii) and the Participants shall have no right to receive any portion of any Facing Fees). Upon any change in the Revolving Loan Commitments or Revolving Percentages of the Banks Revolving Lenders pursuant to Section 1.13 or 14.0413.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the Participations participations therein pursuant to this Section 2.03 to reflect the new Revolving Percentages of the assignor and assignee BankRevolving Lender or of all Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an the respective Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable decision, shall not create for such Issuing Bank Lender any resulting liabilityliability to any Credit Party or any Lender.
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Revolving Lender, of such failure, and each Participant Revolving Lender shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving Lender's Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Participant Revolving Lender required to fund a payment under a Letter of Credit, such Participant Revolving Lender shall make available to the Administrative Agent for the account of the applicable such Issuing Bank Lender in Dollars such Participant’s Revolving Lender's Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant Revolving Lender shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an such Issuing BankLender, such Participant Revolving Lender agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds Rate. The failure of any Participant Revolving Lender to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any Letter of Credit shall not relieve any other Participant Revolving Lender of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant Revolving Lender shall be responsible for the failure of any other Participant Revolving Lender to make available to the Administrative Agent, such Issuing Lender such other Participant’s Revolving Lender's Revolving Percentage of any such payment.
(d) Whenever an any Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each Participant Revolving Lender which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage Lender's share (based upon the proportionate aggregate amount originally funded by such Revolving Lender to the aggregate amount funded by all Revolving Lenders in the respective Letter of Credit) 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) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants respective Revolving Lenders to make payments to the Administrative Agent for the account of an each Issuing Bank 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing BankLender, any BankParticipant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Lender of any Letter of Credit, such the Issuing Bank shall be deemed to have sold and transferred to each other RC Bank Lender, and each Lender (each such other RC Bank, in its capacity under this Section 2.032.19, a “"Participant”), and each such Participant ") shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s 's Revolving Percentage Loan Commitment percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawingsunpaid Reimbursement Obligations relating thereto, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.19 to reflect the new Revolving Percentages Loan Commitment percentages of the assignor and assignee BankLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an the Issuing Bank Lender shall not have no any obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, Credit issued by it shall not create for such Issuing Bank Lender any resulting liabilityliability to the Borrower, any Affiliate, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of the Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that an the Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Bank Lender pursuant to Section 2.04(a)2.18, such the Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s 's Revolving Percentage Loan Commitment percentage of such unreimbursed payment in Dollars lawful money of the United States and in same day immediately available funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account such Issuing Lender in lawful money of the applicable Issuing Bank United States and in immediately available funds such Participant’s 's Revolving Percentage Loan Commitment percentage of the amount of such payment on such Business Day in Dollars and in same day fundsDay. If and to the extent such Participant shall not have so made its Revolving Percentage Loan Commitment percentage of the amount of such payment available to the Administrative Agent for the account of an Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three (3) 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 Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage Loan Commitment 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 Lender its Revolving Percentage Loan Commitment percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Issuing Lender such other Participant’s 's Revolving Percentage Loan Commitment percentage of any such payment.
(d) Whenever an the Issuing Bank Lender receives a payment of a reimbursement obligation Reimbursement Obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such the Issuing Bank Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage Loan Commitment percentage thereof, in Dollars lawful money of the United States and in same day immediately available funds, an amount equal to such Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Upon the Borrower and an Issuing Bankrequest of any Participant, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of Issuing Lender shall furnish to such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect Participant copies of any documents submitted by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which issued by it and such other documentation as may prove to reasonably be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank Lender with respect to Letters of Credit shall be irrevocable and not be 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bank, any BankParticipant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; or
(v) the occurrence of any Default or Event of DefaultDefault which is continuing.
Appears in 1 contract
Samples: Commercial Loan and Security Agreement (Trans Lux Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any each Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Lender, other RC Bank than such Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.032.04, a “"Participant”"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage 's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks Lenders pursuant to Section 1.13 or 14.0413.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.04 to reflect the new Revolving Percentages of the assignor and assignee BankLender, as the case may be.
(b) In determining whether to pay under any Letter of CreditCredit issued by it, an no Issuing Bank Lender shall have no an obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, Credit issued by it shall not create for such Issuing Bank Lender any resulting liabilityliability to the Borrower, any other Credit Party, any Lender or any other Person unless taken or omitted by reason of the gross negligence or willful misconduct of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving 's Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York Detroit, Michigan 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 applicable respective Issuing Bank Lender in Dollars such Participant’s Revolving 's Percentage of the amount of such payment on such Business Day in Dollars and 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 Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Base Rate Loans for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of such respective Issuing Bank 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 such respective Issuing Bank 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 Issuing Lender such other Participant’s Revolving 's Percentage of any such payment.
(d) Whenever an Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Upon the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect request of any documents submitted by any party in connection with the application for and issuance of or any drawing under Participant, each Issuing Lender shall furnish to such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency Participant copies of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which issued by it and such other documentation as may prove to reasonably be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an each Issuing Bank 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 (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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative AgentAgents, any Issuing BankLender, any Bank, Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Lender with a Commitment, other RC Bank than such Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.03, a “Participant”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks Lenders pursuant to Section 1.13 Sections 1.12 or 14.0413.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 to reflect the new Revolving Percentages of the assignor and assignee BankLender or of all Lenders with Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an such Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Lender any resulting liabilityliability to any Credit Party or any Lender.
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars the relevant Permitted Currency as the applicable Letter of Credit was issued and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 1:00 P.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of such Issuing Lender in the relevant Permitted Currency as the applicable Issuing Bank Letter of Credit was issued such Participant’s Revolving Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Revolving Loans for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any such Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of such Issuing Lender such other Participant’s Revolving Percentage of any such payment.
(d) Whenever an any Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received (for the account of any such Issuing Bank Lender) any payments from the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each Participant which has paid its Revolving Percentage thereofthereof in the relevant Permitted Currency, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Each Issuing Lender shall, promptly after the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions issuance of, or misuse amendment to, a Letter of Credit give the Administrative Agent and the Borrowers written notice of such issuance or amendment, as the case may be, and such notice shall be accompanied by a copy of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such issued Letter of Credit or amendment, as the rights or benefits thereunder or proceeds thereofcase may be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Participant, in whole writing, of such issuance or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays amendment and in the transmission or delivery of any messages by mailevent a Participant shall so request, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make Administrative Agent shall furnish such Participant with a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control copy of such Issuing Bank, including without limitation any acts of governmentsissuance 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 Participants to make payments to the Administrative Agent for the account of an the respective Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower Borrowers or any of their respective Subsidiaries may have at any time against a beneficiary beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing BankLender, any BankIssuing Lender, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower 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 the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Lender of any Letter of Credit, such the Issuing Bank Lender shall be deemed to have sold and transferred to each Lender (other RC Bank than the Issuing Lender in its capacity (if any) as a Lender) and each such other RC Bank, Lender (in its capacity under this Section 2.03SECTION 3.4, a “Participant”"PARTICIPANT"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving 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 Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Aggregate Commitments or Proportionate Shares of the Banks respective Lenders pursuant to Section 1.13 SECTION 2.9 or 14.04SECTION 11.6, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid DrawingsDrawings relating thereto, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 SECTION 3.4 to reflect the new Revolving Percentages Proportionate Shares of the assignor and assignee BankLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an the Issuing Bank Lender shall not have no any obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Bank Lender under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, Credit issued by it shall not create for such the Issuing Bank Lender any resulting liability.
(c) In the event that an Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full liability to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business DayBorrower, any Participant required to fund a payment under a Letter of Creditother Credit Party, such Participant shall make available to the Administrative Agent for the account of the applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 Revolving Percentage of any payment under any Letter of Credit shall not relieve Lender or any other Participant of its obligation hereunder Person unless such action is taken or omitted to make available to the Administrative Agent for the account of such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent taken with gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect as determined by a court of any documents submitted by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
(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 the Borrower may have at any time against a beneficiary named competent jurisdiction in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be actingfinal and non-appealable decision), the Administrative Agent, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit, such Issuing Bank the Letter of Credit Issuer shall be deemed to have sold and transferred to each other RC Bank Revolving Lender, and each Revolving Lender (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”), and each such Participant ) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such ParticipantRevolving Lender’s Revolving Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will shall be paid payable directly to the Administrative Agent for the ratable account of the Participants Revolving Lenders as provided in Section 3.01(b4.1(b) and the Participants shall have no right to receive any portion of any Facing Fronting Fees)) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments of the Banks Revolving Lenders pursuant to Section 1.13 or 14.0412.4(b), it is hereby agreed that, with respect to all then outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 3.4 to reflect the new Revolving Percentages of the assignor assigning and assignee BankRevolving Lender.
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank the Letter of Credit Issuer shall not have no any obligation relative to the Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit 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 Bank the Letter of Credit Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability.
(c) In the event that an Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.04(a3.3(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent Agent, and after receipt of such notice, the Administrative Agent will shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing Bankthe Letter of Credit Issuer, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, notifies any Participant required to fund a payment under a Letter of CreditCredit prior to 11:00 a.m. on any Business Day, such Participant shall make available to the Administrative Agent for the account of the applicable Issuing Bank Letter of Credit Issuer such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an Issuing Bankthe Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of the Letter of Credit Issuer such other Participant’s Revolving Percentage of any such payment.
(d) Whenever an Issuing Bank the Letter of Credit Issuer receives a payment of a reimbursement obligation Reimbursement Obligation as to which the Administrative Agent has received for the account of such Issuing Bank the Letter of Credit Issuer any payments from the Participants pursuant to clause (c) aboveSection 3.4(c), such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement thereof and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower Borrowers may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bankthe Letter of Credit Issuer, any BankLender, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower Borrowers 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 any Issuing Bank the Letter of Credit Issuer of any Letter of Credit, such Issuing Bank the Letter of Credit Issuer shall be deemed to have sold and transferred to each other RC Bank Revolving Lender, and each Revolving Lender (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”), and each such Participant ) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such ParticipantRevolving Lender’s Revolving Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will shall be paid payable directly to the Administrative Agent for the ratable account of the Participants Revolving Lenders as provided in Section 3.01(b4.1(b) and the Participants shall have no right to receive any portion of any Facing Fronting Fees)) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments of the Banks Revolving Lenders pursuant to Section 1.13 or 14.0412.4(b), it is hereby agreed that, with respect to all then outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 3.4 to reflect the new Revolving Percentages of the assignor assigning and assignee BankRevolving Lender.
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank the Letter of Credit Issuer shall not have no any obligation relative to the Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit 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 Bank the Letter of Credit Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability.
(c) In the event that an Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.04(a3.3(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent Agent, and after receipt of such notice, the Administrative Agent will shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing Bankthe Letter of Credit Issuer, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, notifies any Participant required to fund a payment under a Letter of CreditCredit prior to 11:00 a.m. on any Business Day, such Participant shall make available to the Administrative Agent for the account of the applicable Issuing Bank Letter of Credit Issuer such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an Issuing Bankthe Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of the Letter of Credit Issuer such other Participant’s Revolving Percentage of any such payment.
(d) Whenever an Issuing Bank the Letter of Credit Issuer receives a payment of a reimbursement obligation Reimbursement Obligation as to which the Administrative Agent has received for the account of such Issuing Bank the Letter of Credit Issuer any payments from the Participants pursuant to clause (c) aboveSection 3.4(c), such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement thereof and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 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, any Issuing Bankthe Letter of Credit Issuer, any BankLender, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower 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
Samples: Credit Agreement (Air Transport Services Group, Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Lender with a Revolving Loan Commitment, other RC Bank than such Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.03, a “"Participant”"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage 's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks Lenders pursuant to Section 1.13 Sections 1.12 or 14.0413.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 to reflect the new Revolving Percentages of the assignor and assignee BankLender or of all Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an such Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Lender any resulting liabilityliability to any Credit Party or any Lender.
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving 's Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the applicable such Issuing Bank Lender in Dollars such Participant’s Revolving 's Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any such Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of such Issuing Lender such other Participant’s Revolving 's Percentage of any such payment.
(d) Whenever an any Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received (for the account of any such Issuing Bank Lender) any payments from the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Each Issuing Lender shall, promptly after the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions issuance of, or misuse amendment to, a Letter of Credit give the Administrative Agent and the Borrower written notice of such issuance or amendment, as the case may be, and such notice shall be accompanied by a copy of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such issued Letter of Credit or amendment, as the rights or benefits thereunder or proceeds thereofcase may be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Participant, in whole writing, of such issuance or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays amendment and in the transmission or delivery of any messages by mailevent a Participant shall so request, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make Administrative Agent shall furnish such Participant with a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control copy of such Issuing Bank, including without limitation any acts of governmentsissuance 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. 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 Participants to make payments to the Administrative Agent for the account of an the respective Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing BankLender, any BankIssuing Lender, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the 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 any the Issuing Bank Lender of any Standby Letter of Credit, such the Issuing Bank Lender shall be deemed to have sold and transferred to each Lender (other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”than the Issuing Lender), and each such Participant Lender shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, in proportion to the extent of such Participant’s Revolving 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 Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)collateral therefor. Upon any change in a Lender's Pro Rata Share of the Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04Commitment, it is hereby agreed that, that with respect to all outstanding Standby Letters of Credit, and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.3(d) to reflect the new Revolving Percentages Pro Rata Share of the assignor Revolving Loan Commitment of the assigning and assignee BankLenders.
(bii) In determining whether to pay under any Standby Letter of Credit, an the Issuing Bank Lender shall have no obligation relative to the Participants Lenders other than to confirm that any documents required to be delivered under such Standby Letter of Credit appear to have been delivered and that they appear to 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 Bank Lender under or in connection with any Standby Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank Lender any resulting liabilityliability to any Lender.
(ciii) In Upon the event that an request of any Lender, the Issuing Bank makes Lender shall furnish to such Lender copies of any payment under any Standby Letter of Credit to which the Issuing Lender is party and the Borrower shall not have reimbursed such amount in full other documentation relating to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 Revolving Percentage of any payment under any Standby Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of as may reasonably be requested by such Issuing Bank 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 paymentLender.
(d) Whenever an Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(eiv) As between the Borrower Borrowers on the one hand and an the Issuing BankLender and the Lenders on the other hand, the Borrower assumes Borrowers assume all risks of the acts and omissions of, or misuse of the Standby Letters of Credit by, by the respective beneficiaries or transferees of such Standby Letters of Credit. Further, and not in limitation Without limiting the generality of the foregoing, absent neither the Issuing Lender nor any other Lender shall be responsible (except in the case of its gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible misconduct) for the following:
(iA) 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 and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(iiB) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Standby Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iiiC) failure of the beneficiary of any such Standby Letter of Credit to comply fully with conditions required in order to draw upon such Standby Letter of Credit, other than material conditions or instructions that expressly appear in such Standby Letter of Credit;
(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 be in cipherare encoded;
(ivE) errors in interpretation of technical terms;
(vF) 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;
(viG) the misapplication by the beneficiary of any such Standby Letter of Credit or of the proceeds of any drawing of any such Standby Letter of Credit; andor
(viiH) any consequences arising from causes beyond the control of such the Issuing BankLender, including without limitation any acts of governments.
(fv) The obligations of the Participants Lenders to make payments to the Administrative Agent for the account of an the Issuing Bank Lender with respect to Standby Letters of Credit 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower 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, any the Issuing BankLender, any BankLender, or any other Person, whether in connection with this Agreement, any Standby Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit)transactions;
(iiiC) any draft, certificate or any other document presented under the Standby Letter of Credit proving shall prove to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being shall prove to be untrue or inaccurate in any respect;
(ivD) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; or;
(vE) the occurrence of any Event of Default or Potential Event of Default; or
(F) the termination of this Agreement or any Commitment.
Appears in 1 contract
Samples: Credit Agreement (Overnite Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Lender with a Commitment, other RC Bank than such Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.03, a “Participant”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks Lenders pursuant to Section 1.13 Sections 1.12 or 14.0413.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 to reflect the new Revolving Percentages of the assignor and assignee BankLender or of all Lenders with Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an such Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Lender any resulting liabilityliability to any Credit Party or any Lender.
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 1:00 P.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the applicable such Issuing Bank Lender in Dollars such Participant’s Revolving Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Revolving Loans for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any such Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of such Issuing Lender such other Participant’s Revolving Percentage of any such payment.
(d) Whenever an any Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received (for the account of any such Issuing Bank Lender) any payments from the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Each Issuing Lender shall, promptly after the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions issuance of, or misuse amendment to, a Letter of Credit give the Administrative Agent and the Borrowers written notice of such issuance or amendment, as the case may be, and such notice shall be accompanied by a copy of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such issued Letter of Credit or amendment, as the rights or benefits thereunder or proceeds thereofcase may be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Participant, in whole writing, of such issuance or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays amendment and in the transmission or delivery of any messages by mailevent a Participant shall so request, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make Administrative Agent shall furnish such Participant with a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control copy of such Issuing Bank, including without limitation any acts of governmentsissuance 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 Participants to make payments to the Administrative Agent for the account of an the respective Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower Borrowers or any of their respective Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing BankLender, any BankIssuing Lender, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower 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 the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold to each Lender with a Revolving Loan Commitment, other RC Bank than such Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.032.04, a “"Participant”"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving '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 Facing Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Banks Lenders pursuant to Section 1.13 or 14.0412.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.04 to reflect the new Revolving RL Percentages of the assignor and assignee BankLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an no Issuing Bank Lender shall have no 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 Bank Lender under or in connection with any Letter of CreditCredit issued by it shall not create for an Issuing Lender any resulting liability to any Revolving Borrower, if any other Credit Party, any Participant or any other Lender unless such action is taken or omitted in the absence of to be taken with gross negligence or willful misconduct, shall not create for misconduct on the part of such Issuing Bank any resulting liabilityLender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such the respective Issuing BankLender, the amount of such Participant’s Revolving 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York timeLocal 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 applicable respective Issuing Bank Lender such Participant’s Revolving 's RL Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving RL Percentage of the amount of such payment available to the Administrative Agent for the account of an the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Revolving Loans maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of an Issuing Lender such Issuing Bank its Revolving Participant's RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank its Revolving Lender such Participant's RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of such Issuing Lender such other Participant’s Revolving 's RL Percentage of any such payment.
(d) Whenever an Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its Revolving RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Upon the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect request of any documents submitted by any party in connection with the application for and issuance of or any drawing under Participant, each Issuing Lender shall furnish to such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency Participant copies 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 issued by it and such other documentation as may prove to reasonably be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of an each Issuing Bank 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any such Issuing BankLender, any Bank, Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower 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 any Issuing Bank the Letter of Credit Issuer of any Letter of Credit, such Issuing Bank the Letter of Credit Issuer shall be deemed to have sold and transferred to each other RC Bank Revolving Lender, and each such Revolving Lender (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”), and each such Participant ) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will shall be paid payable directly to the Administrative Agent for the ratable account of the Participants Revolving Lenders as provided in Section 3.01(b3.1(b) and the Participants shall have no right to receive any portion of any Facing Fronting Fees)) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments Commitment of the Banks any Revolving Lender pursuant to Section 1.13 or 14.0412.4(b), it is hereby agreed that, with respect to all then outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.4 to reflect the new Revolving Percentages of the assignor assigning and assignee BankRevolving Lender.
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank the Letter of Credit Issuer shall not have no any obligation relative to the Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit 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 Bank the Letter of Credit Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability.
(c) In the event that an Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.04(a2.3(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent Agent, and after receipt of such notice, the Administrative Agent will shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing Bank, the Letter of Credit Issuer the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, notifies any Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the applicable Issuing Bank Letter of Credit Issuer such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an Issuing Bankthe Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, the Letter of Credit Issuer forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of the Letter of Credit Issuer such other Participant’s Revolving Percentage of any such payment.
(d) Whenever an Issuing Bank the 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 Bank the Letter of Credit Issuer any payments from the Participants pursuant to clause (c) aboveSection 2.4(c), such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement thereof and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the either Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bankthe Letter of Credit Issuer, any BankLender, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the either 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; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Lender, other RC Bank than such Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.033.04, a “"Participant”"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving 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 Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks Lenders pursuant to Section 1.13 2.13 or 14.0413.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, Acceptances created thereunder and Unpaid DrawingsDrawings with respect thereto, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 3.04 to reflect the new Revolving Percentages of the assignor and assignee BankLender or of all Lenders, as the case may be.
(b) In determining whether to pay or create an Acceptance under any Letter of Credit, an such Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable proceeding, shall not create for such Issuing Bank Lender any resulting liabilityliability to the Borrowers or any Lender.
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit issued by it or any Acceptance created thereunder and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a3.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving 's Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable such Issuing Bank Lender in Dollars such Participant’s Revolving '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 Dollars and 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 an such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate for the first three days and at the interest rate applicable to Revolving Loans maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving 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 the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under with respect to any Letter of Credit or Acceptance created thereunder on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, such Issuing Lender such other Participant’s Revolving 's Percentage of any such payment.
(d) Whenever an any Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Upon the Borrower and an Issuing Bankrequest of any Participant, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of relevant Issuing Lender shall deliver to such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect Participant copies of any documents submitted by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which issued by it and such other documentation as may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages reasonably requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an each Issuing Bank Lender with respect to Letters of Credit and Acceptances issued thereunder shall be irrevocable and not subject to counterclaim, set-off or any 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower Borrowers or any of their Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), any holder of an Acceptance, the Administrative Agent, any Issuing Bank, any BankParticipant, 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 transaction between the any Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by any the Issuing Bank Lender of any Standby Letter of Credit, such the Issuing Bank Lender shall be deemed to have sold and transferred to each Lender (other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”than the Issuing Lender), and each such Participant Lender shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, in proportion to the extent of such Participant’s Revolving 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 Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)collateral therefor. Upon any change in a Lender's Pro Rata Share of the Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04Commitment, it is hereby agreed that, that with respect to all outstanding Standby Letters of Credit, and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.3(d) to reflect the new Revolving Percentages Pro Rata Share of the assignor Revolving Loan Commitment of the assigning and assignee Bank.
(b) Lenders. In determining whether to pay under any Standby Letter of Credit, an the Issuing Bank Lender shall have no obligation relative to the Participants Lenders other than to confirm that any documents required to be delivered under such Standby Letter of Credit appear to have been delivered and that they appear to 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 Bank Lender under or in connection with any Standby Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank Lender any resulting liability.
(c) In liability to any Lender. Upon the event that an request of any Lender, the Issuing Bank makes Lender shall furnish to such Lender copies of any payment under any Standby Letter of Credit to which the Issuing Lender is party and the Borrower shall not have reimbursed such amount in full other documentation relating to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 Revolving Percentage of any payment under any Standby Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of as may reasonably be requested by such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) Lender. As between the Borrower on the one hand and an the Issuing BankLender and the Lenders on the other hand, the Borrower assumes all risks of the acts and omissions of, or misuse of of, the Standby Letters of Credit by, by the respective beneficiaries or transferees of such Standby Letters of Credit. Further, and not in limitation Without limiting the generality of the foregoing, absent neither the Issuing Lender nor any other Lender shall be responsible (except in the case of its gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible misconduct) for the following:
(iA) 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 and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(iiB) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Standby Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iiiC) failure of the beneficiary of any such Standby Letter of Credit to comply fully with conditions required in order to draw upon such Standby Letter of Credit, other than material conditions or instructions that expressly appear in such Standby Letter of Credit;
(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 be in cipherare encoded;
(ivE) errors in interpretation of technical terms;
(vF) 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;
(viG) the misapplication by the beneficiary of any such Standby Letter of Credit or of the proceeds of any drawing of any such Standby Letter of Credit; andor
(viiH) any consequences arising from causes beyond the control of such the Issuing BankLender, including without limitation any acts of governments.
(f) . The obligations of the Participants Lenders to make payments to the Administrative Agent for the account of an the Issuing Bank Lender with respect to Standby Letters of Credit 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Standby Letter of Credit, any transferee of any Standby Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any the Issuing BankLender, any BankLender, or any other Person, whether in connection with this Agreement, any Standby Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit)transactions;
(iiiC) any draft, certificate or any other document presented under the Standby Letter of Credit proving shall prove to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being shall prove to be untrue or inaccurate in any respect;
(ivD) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or;
(vE) the occurrence of any Event of Default or Potential Event of Default; or
(F) the termination of this Agreement or any Commitment.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Lender with a Revolving Loan Commitment, other RC Bank than such Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.03, a “"Participant”"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage 's Proportionate Share in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect theretothereto (other than the Facing Fees, which shall be for the account of the respective Issuing Lender), and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or Proportionate Shares of the Banks Lenders pursuant to Section 1.13 or 14.0412.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 to reflect the new Revolving Percentages Proportionate Shares of the assignor and assignee BankLender or of all Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an such Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Lender any resulting liabilityliability to the Borrower or any Lender.
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving Percentage 's Proportionate Share of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. 12:00 Noon (New York City time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall use its best efforts to make available to the Administrative Agent for the account of the applicable such Issuing Bank Lender such Participant’s Revolving Percentage 's Proportionate Share of the amount of such payment on such Business Day in Dollars and in same day fundsfunds 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 Revolving Percentage Proportionate Share of the amount of such payment available to such Issuing Lender on the Administrative Agent for the account date of an Issuing Bankpayment, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage Proportionate Share 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 Lender its Revolving Percentage Proportionate 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 Administrative Agent, such Issuing Lender such other Participant’s Revolving Percentage 's Proportionate Share of any such payment.
(d) Whenever an any Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent it has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage Proportionate Share thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage '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 of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationspayment pursuant to clause (c) above.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an each Issuing Bank 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 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, any Issuing Bank, any BankParticipant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the 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. (ai) Immediately upon the issuance by any the Issuing Bank Lender of any Letter of Credit, such each Lender (other than the Issuing Bank Lender) shall be deemed to have sold to each other RC Bank (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”), equal to the extent Pro Rata Share of such Participant’s Revolving Percentage Lender (a "Participating Lender") in all LC Obligations arising in connection with such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, Credit and any security therefor or guaranty pertaining thereto (although Letter thereto, but in no event greater than an amount which, when added to such Lender's Pro Rata Share 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) all Revolving Loans and the Participants shall have no right to receive any portion of any Facing Fees). Upon any change in the Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04LC Obligations then outstanding, it is hereby agreed that, with respect to all outstanding Letters of Credit, and Unpaid Drawings, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 to reflect the new Revolving Percentages of the assignor and assignee Bankexceeds such Lender's Commitment.
(bii) In determining whether to pay under any Letter of Credit, If an Issuing Bank shall have no obligation relative to the Participants other than to confirm that any documents required to be delivered under such Letter of Credit have been delivered and that they appear to substantially comply Lender makes a payment on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Bank under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank any resulting liability.
(c) In the event that an Issuing Bank makes any payment under any a Letter of Credit and the Borrower shall Company does not have reimbursed repay or cause to be repaid the amount of such amount in full to such payment on the Reimbursement Date, the Issuing Bank pursuant to Section 2.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt Agent, which shall promptly notify each Participating Lender, of such notice, the Administrative Agent will notify each Participant of such failure, payment and each Participant Participating Lender shall promptly and unconditionally pay to the Administrative Agent, for the account of such the Issuing BankLender in Dollars in immediately available funds, the amount of such Participant’s Revolving Percentage Participating Lender's Pro Rata Share of such unreimbursed payment in Dollars payment, and in same day fundsAgent shall promptly pay such amounts to the Issuing Lender. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall Participating Lender does not make available to the Administrative Agent for the account of the applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage Pro Rata Share of the amount of such payment available to the Administrative Agent, such Lender agrees to pay to Agent for the account of an the Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, 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 thereon at the overnight Federal Funds Rate. The failure of any Participant Participating Lender to make available to Agent such Participating Lender's Pro Rata Share of the Administrative Agent for the account of such Issuing Bank its Revolving Percentage of any payment under any Letter of Credit LC Obligations shall not relieve any other Participant Participating Lender of its obligation hereunder to make available to Agent its Pro Rata Share of the Administrative Agent for the account of such Issuing Bank its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified aboveLC Obligations, but no Participant Participating Lender shall be responsible for the failure of any other Participant Participating Lender to make available to Agent its Pro Rata Share of the Administrative Agent, LC Obligations on the date such other Participant’s Revolving Percentage of any such paymentpayment is to be made.
(diii) Whenever an Issuing Bank Lender receives a payment on account of a reimbursement obligation the LC Obligations, including any interest thereon, as to which the Administrative Agent has previously received payments from any Participating Lender for the account of such Issuing Bank any payments from Lender, the Participants pursuant to clause (c) aboveIssuing Lender, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant Participating Lender which has paid funded its Revolving Percentage thereofparticipating interest therein, in Dollars and in same day immediately available funds, an amount mount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective ParticipationsParticipating Lender's Pro Rata Share thereof.
(eiv) As between the Borrower The obligation of each Participating Lender to make payments to Agent in connection with any payment under a Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever (other than for an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent Lender's gross negligence or willful misconduct on its partmisconduct), no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, circumstances and irrespective of whether or not the Company may assert or have any of the following circumstances (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
(i) claim for any lack of validity or enforceability unenforceability of this Agreement or any of the other Credit Loan Documents;
(ii) ; the existence of any claim, set-off, defense Default or other right which the Borrower may have at any time against a beneficiary named in a Letter Event of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) Default; any draft, certificate or any other document presented under the a Letter of Credit proving having been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) ; or the surrender or impairment existence of any security for setoff or defense the performance Company or observance of any other obligor may have with respect to any of the terms of any of the Credit Documents; orObligations.
(v) Neither the occurrence Issuing Lender nor any of its officers, directors, employees or agents shall be liable to any Participating Lenders for any action taken or omitted to be taken under or in connection with any of the LC Documents except as a result of gross negligence or willful misconduct on the part thereof. The Issuing Lender does not assume any responsibility for any failure or delay in performance or breach by the Company or any other Person of any Default of its obligations under any of the LC Documents. The Issuing Lender does not make to Participating Lenders any express or Event implied warranty, representation or guaranty with respect to the LC Documents or the Company. The Issuing Lender shall not be responsible to any Participating Lender for any recitals, statements, information, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of Defaultor any of the LC Documents; the validity, genuineness, enforceability, collectibility, value or sufficiency of any collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of the Company. In connection with its administration of and enforcement of rights or remedies under any of the LC Documents, the Issuing Lender shall be entitled to act, and shall be fully protected in acting upon, any certification, notice or other communication in whatever form believed by the Issuing Lender in good faith, to be genuine and correct and to have been signed or sent or made by a proper Person. The Issuing Lender, may consult with and employ legal counsel, accountants and other experts and to advise it concerning its rights, powers and privileges under the LC Documents and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advise given by such experts. The Issuing Lender may employ agents and attorneys-in-fact in connection with any matter relating to the LC Documents and shall not be liable for the negligence, default or misconduct of any such agents or attorneys-in-fact selected with reasonable care. The Issuing Lender shall not have any liability to any Participating Lender by reason of the Issuing Lender's refraining to take any action under any of the LC Documents without having first received written instructions from the Required Lenders to take such action.
Appears in 1 contract
Samples: Credit Agreement (Picturetel Corp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of Credit, such Issuing Bank the Letter of Credit Issuer shall be deemed to have sold and transferred to each other RC Bank Revolving Lender, and each Revolving Lender (each such other RC Bank, in its capacity under this Section 2.03, a “Participant”), and each such Participant ) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such ParticipantRevolving Lender’s Revolving Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will shall be paid payable directly to the Administrative Agent for the ratable account of the Participants Revolving Lenders as provided in Section 3.01(b3.1(b) and the Participants shall have no right to receive any portion of any Facing Fronting Fees)) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments of the Banks Revolving Lenders pursuant to Section 1.13 or 14.0412.4(b), it is hereby agreed that, with respect to all then outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.4 to reflect the new Revolving Percentages of the assignor assigning and assignee BankRevolving Lender.
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank the Letter of Credit Issuer shall not have no any obligation relative to the Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit 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 Bank the Letter of Credit Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability.
(c) In the event that an Issuing Bank the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank the Letter of Credit Issuer pursuant to Section 2.04(a2.3(a), such Issuing Bank the Letter of Credit Issuer shall promptly notify the Administrative Agent Agent, and after receipt of such notice, the Administrative Agent will shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing Bankthe Letter of Credit Issuer, the amount of such Participant’s Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, notifies any Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the applicable Issuing Bank Letter of Credit Issuer such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an Issuing Bankthe Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bankthe Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of the Letter of Credit Issuer such other Participant’s Revolving Percentage of any such payment.
(d) Whenever an Issuing Bank the 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 Bank the Letter of Credit Issuer any payments from the Participants pursuant to clause (c) aboveSection 2.4(c), such Issuing Bank the Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement thereof and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 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, any Issuing Bankthe Letter of Credit Issuer, any BankLender, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower 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 any the Issuing Bank Lender of any Letter of Credit, such the Issuing Bank Lender shall be deemed to have sold and transferred to each Lender, other RC Bank than the Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.032.20, a “"Participant”"), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage 's Ratable Portion, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect theretothereto (excluding the Facing Fee), and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04Lenders, it is hereby agreed that, with respect to all any outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.20 to reflect the new Revolving Percentages Ratable Portions of the assignor and assignee BankLenders.
(b) In determining whether to pay under any Letter of Credit, an the Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such the Issuing Bank Lender any resulting liabilityliability to the Borrower or any Lender.
(c) In the event that an the Issuing Bank Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such the Issuing Bank Lender pursuant to Section 2.04(a2.21(a), such the Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving Percentage 's Ratable Portion of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any 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 applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 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 such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governments.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of an Issuing Bank with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):
(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 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, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the 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; or
(v) the occurrence of any Default or Event of Default.notifies any
Appears in 1 contract
Samples: Revolving Credit Agreement (Felcor/Lax Holdings Lp)
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank the Letter of Credit Issuer of any Letter of CreditCredit (or an amendment to a Letter of Credit increasing the amount or extending the expiration date thereof), such Issuing Bank the Letter of Credit Issuer shall be deemed to have sold and transferred to each other RC Bank Revolving Credit Lender (each such other RC BankRevolving Credit Lender, in its capacity under this Section 2.033.3(a), a “Letter of Credit Participant”), and each such Letter of Credit Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bankthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each each, a “Letter of Credit Participation”), to the extent of such Letter of Credit Participant’s Revolving Percentage Credit Commitment Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the Letter of Credit Participants as provided in Section 3.01(b4.1(c) and the Letter of Credit Participants shall have no right to receive any portion of any Facing Fees). Upon any change in fees paid to the Revolving Loan Commitments Administrative Agent for the account of the Banks pursuant to Section 1.13 or 14.04, it is hereby agreed that, with Letter of Credit Issuer in respect to all outstanding Letters of Credit, and Unpaid Drawings, there shall be an automatic adjustment to the Participations pursuant to this Section 2.03 to reflect the new Revolving Percentages each Letter of the assignor and assignee BankCredit issued hereunder).
(b) In determining whether to pay under any Letter of Credit, an Issuing Bank the Letter of Credit Issuer shall have no obligation relative to the Letter of Credit Participants other than to confirm to the Administrative Agent that any documents required to be delivered under such Letter of Credit 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 Bank the Letter of Credit Issuer under or in connection with any Letter of CreditCredit issued by it, if taken or omitted in the absence of gross negligence or willful misconduct, as determined in a final non-appealable judgment of a court of competent jurisdiction, shall not create for such Issuing Bank the Letter of Credit Issuer any resulting liability.
(c) In the event that an Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify Whenever the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant’s Revolving Percentage of such unreimbursed receives a payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter respect of Credit, such Participant shall make available to the Administrative Agent an unpaid reimbursement obligation for the account of the applicable Issuing Bank such Participant’s Revolving Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an 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 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 such Issuing Bank 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 Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payments Issuer from the Participants pursuant to clause (c) aboveBorrower, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Letter of Credit Participant which that has paid its Revolving Credit Commitment Percentage thereofof such reimbursement obligation, in Dollars and in same day immediately available funds, an amount equal to such Letter of Credit Participant’s Revolving Percentage share (based upon the proportionate aggregate amount originally funded or deposited by such Letter of Credit Participant to the aggregate amount funded or deposited by all Letter of Credit Participants) of the principal amount of such reimbursement obligation and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(e) As between the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters Letter of Credit by, Participations; provided that the respective beneficiaries amount paid to any Letter of Credit Participant shall not exceed the amount funded or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any documents submitted deposited by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(fd) The obligations of the Letter of Credit Participants to purchase Letter of Credit Participations from the Letter of Credit Issuer and make payments to the Administrative Agent for the account of an Issuing Bank the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, including under any of the following circumstances (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 that the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such beneficiary or transferee may be acting), the Administrative Agent, any Issuing Bankthe Letter of Credit Issuer, any Bank, Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein hereby or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or;
(v) the occurrence of any Default or Event of Default.; or
(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Credit Party or Restricted Subsidiary
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold and transferred to each Lender with a Commitment, other RC Bank than such Issuing Lender (each such other RC BankLender, in its capacity under this Section 2.033.03, a “Participant”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving Percentage Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or Percentages of the Banks Lenders pursuant to Section 1.13 Sections 2.12 or 14.04, it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 3.03 to reflect the new Revolving Percentages of the assignor and assignee BankLender or of all Lenders with Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an such Issuing Bank Lender shall have no obligation relative to the Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by an any Issuing Bank Lender under or in connection with any Letter of Credit, Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction, shall not create for such Issuing Bank Lender any resulting liabilityliability to any Credit Party or any Lender.
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a3.04(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such Issuing Bank, Lender the amount of such Participant’s Revolving Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars the same currency as the applicable Letter of Credit was issued and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of such Issuing Lender in the same currency as the applicable Issuing Bank Letter of Credit was issued such Participant’s Revolving Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving Percentage of the amount of such payment available to the Administrative Agent for the account of an such Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any Letter of Credit issued by it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank Lender its Revolving Percentage of any payment under any such Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of such Issuing Lender such other Participant’s Revolving Percentage of any such payment.
(d) Whenever an any Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received (for the account of any such Issuing Bank Lender) any payments from the Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall promptly pay distribute to each Participant which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s Revolving Percentage share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Each Issuing Lender shall, promptly after the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions issuance of, or misuse amendment to, a Letter of Credit give the Administrative Agent and the Borrower written notice of such issuance or amendment, as the case may be, and such notice shall be accompanied by a copy of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) 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 Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such issued Letter of Credit or amendment, as the rights or benefits thereunder or proceeds thereofcase may be. Upon receipt of such notice, the Administrative Agent shall promptly notify each Participant, in whole writing, of such issuance or in part, which may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays amendment and in the transmission or delivery of any messages by mailevent a Participant shall so request, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make Administrative Agent shall furnish such Participant with a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control copy of such Issuing Bank, including without limitation any acts of governmentsissuance 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 Participants to make payments to the Administrative Agent for the account of an the respective Issuing Bank Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing BankLender, any BankIssuing Lender, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by any an Issuing Bank Lender of any Letter of Credit, such Issuing Bank Lender shall be deemed to have sold to each other RC Bank Revolving Lender (each such other RC BankRevolving Lender, in its capacity under this Section 2.032.04, a “Participant”), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing BankLender, without recourse or warranty, an undivided interest and participation (each a “Participation”)participation, to the extent of such Participant’s Revolving 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 Facing Fees) payable with respect thereto, and any security therefor or guaranty pertaining thereto (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)thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Banks Lenders pursuant to Section 1.13 1.13, 1.15, 1.18 or 14.0412.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit, Credit and Unpaid Drawings, there shall be an automatic adjustment to the Participations participations pursuant to this Section 2.03 2.04 to reflect the new Revolving RL Percentages of the assignor and assignee BankLender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, an no Issuing Bank Lender shall have no 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 Bank Lender under or in connection with any Letter of CreditCredit issued by it shall not create for an Issuing Lender any resulting liability to any Revolving Borrower, if any other Credit Party, any Participant or any other Lender unless such action is taken or omitted in the absence of to be taken with gross negligence or willful misconduct, shall not create for misconduct on the part of such Issuing Bank any resulting liabilityLender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that an any Issuing Bank Lender makes any payment under any Letter of Credit issued by it and the respective Revolving Borrower shall not have reimbursed such amount in full to such Issuing Bank Lender pursuant to Section 2.04(a2.05(a), such Issuing Bank Lender shall promptly notify the Administrative Agent and after receipt of such noticeAgent, the Administrative Agent will which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent, Agent for the account of such the respective Issuing BankLender, the amount of such Participant’s Revolving RL Percentage of such unreimbursed payment in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 2.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York timeLocal 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 applicable respective Issuing Bank Lender in Dollars (or to the extent the respective Unpaid Drawing is, in accordance with Section 2.05(a), to be reimbursed by the respective Revolving Borrower in a Primary Alternate Currency, the respective Primary Alternate Currency) such Participant’s Revolving RL Percentage of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Revolving RL Percentage of the amount of such payment available to the Administrative Agent for the account of an the respective Issuing BankLender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing BankLender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Bank Lender at the overnight Federal Funds RateRate (or, in the case of amounts owed in a Primary Alternate Currency, the Administrative Agent’s customary rate for interbank advances in the relevant Primary Alternate Currency) for the first three days and at the interest rate applicable to Revolving Loans maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to the Administrative Agent for the account of an Issuing Lender such Issuing Bank its Revolving Participant’s RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank its Revolving Lender such Participant’s RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, Agent for the account of such Issuing Lender such other Participant’s Revolving RL Percentage of any such payment.
(d) Whenever an Issuing Bank Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Bank Lender any payments from the respective Participants pursuant to clause (c) above, such Issuing Bank Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its Revolving RL Percentage thereof, in Dollars (or in the respective Alternate Currency in the case of payments to be made in such Currencies pursuant to Section 2.05(a)) and in same day funds, an amount equal to such Participant’s Revolving Percentage share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participationsparticipations.
(e) As between Upon the Borrower and an Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries or transferees of such Letters of Credit. Further, and not in limitation of the foregoing, absent gross negligence or willful misconduct on its part, no Issuing Bank shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect request of any documents submitted by any party in connection with the application for and issuance of or any drawing under Participant, each Issuing Lender shall furnish to such Letters of Credit, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency Participant copies of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which issued by it and such other documentation as may prove to reasonably be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in the transmission or delivery of any messages requested by mail, cable, telegraph, telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter of Credit or the proceeds of any drawing of any such Letter of Credit; and
(vii) any consequences arising from causes beyond the control of such Issuing Bank, including without limitation any acts of governmentsParticipant.
(f) The obligations of the respective Participants to make payments to the Administrative Agent for the account of an each Issuing Bank 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 (other than in the case of gross negligence or willful misconduct of such Issuing Bank):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 the Borrower any Revolving Borrower, any other Credit Party or any Subsidiary thereof may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any such Issuing BankLender, any Bank, Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower 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.
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