Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 or 13.04(c), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be. (b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision). (c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in Dollars such Participant’s RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment. (d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations. (e) Upon the request of any Participant, the Administrative Agent shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender and such other documentation as may reasonably be requested by such Participant. (f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: (i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; (ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit); (iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or (v) the occurrence of any Default or Event of Default.
Appears in 2 contracts
Samples: Credit Agreement (Dynegy Inc.), Credit Agreement (Dynegy Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL U.S. Lender, and each such RL U.S. Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower U.S. Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the U.S. Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 2.13 or 13.04(c13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other U.S. Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to be genuine and correct and to have been signed, sent or made by a proper Person and substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the any U.S. Borrower, any other Credit Party, any U.S. Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement bad faith on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision). The Issuing Lender may employ agents and attorneys-in-fact in connection with any matter relating to Letters of Credit and shall not be liable for the negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.
(c) The U.S. Credit Parties assume all risks of the acts, omissions or misuses of any Letter of Credit by the beneficiary. In connection with issuance of any Letter of Credit, none of Administrative Agent, Issuing Lender or any Lender shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any related documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any related documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any related documents or of any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in a Letter of Credit or the related documents; any deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract between a shipper or vendor and a Credit Party (or an Affiliate thereof); errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical terms; the misapplication by a beneficiary of any Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the control of the Issuing Lender, the Administrative Agent or any Lender, including any act or omission of a Governmental Authority. The rights and remedies of the Issuing Lender under the Credit Documents shall be cumulative. The Issuing Lender shall be fully subrogated to the rights and remedies of each beneficiary whose claims against the Credit Parties are discharged with proceeds of any Letter of Credit.
(d) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower U.S. Borrowers shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in U.S. Dollars and in same day immediately available 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 make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in U.S. Dollars such Participant’s RL Percentage of the amount of such payment on such Business Day in same day immediately available funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to U.S. Borrower Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(de) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(ef) Upon the request of any Participant, the Administrative Agent each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(fg) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Holdings or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower Holdings or any Subsidiary of the Borrower Holdings and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 2 contracts
Samples: Abl Credit Agreement (Affinia Group Holdings Inc.), Abl Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by an each Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than such Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “Participant”) ), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13Sections 1.15, 2.14, 2.15, 2.16, 2.17 1.16 or 13.04(c)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee LenderLenders and/or Additional Lenders, as the case may be.
(b) In determining whether to pay under any Letter of CreditCredit issued by it, no Issuing Lender shall have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant Participant, of such failure, and and, except as provided in the proviso of the immediately succeeding sentence, each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 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 respective Issuing Lender in Dollars such Participant’s RL Percentage of the amount of such payment on such Business Day in same day funds; provided, however, that no Participant shall be obligated to pay to the respective Issuing Lender its Percentage of such unreimbursed amount for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, Lender forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an the respective Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any such payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever (except as otherwise provided in the proviso to the second sentence of Section 2.04(c)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Trizec or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any ParticipantIssuing Lender, any Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower Trizec or any Subsidiary of the Borrower its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred transferred to each RL Lender, and each such RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 4.02(b) or 13.04(c13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 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 at the Payment Office for the account of the respective Issuing Lender in Dollars such Participant’s RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstancescircumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL RF Lender, and other than such Issuing Lender (each such RL Lender (RF Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL 's RF Percentage, in such Letter of Credit, Credit and each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL RF Percentages of the Lenders pursuant to Section 2.131.13, 2.14, 2.15, 2.16, 2.17 3.02 or 13.04(c)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL RF Percentages of the assignor and assignee LenderLender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no such Issuing Lender shall have any no obligation relative to the other RF Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is if taken or omitted to be taken with in the absence of gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each casemisconduct, as determined by a court of competent jurisdiction in a final and non-appealable decision)proceeding, shall not create for such Issuing Lender any resulting liability to the Borrower or any Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL 's RF Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 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 respective such Issuing Lender in Dollars such Participant’s RL 's RF Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL RF Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective such Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an such Issuing Lender its RL RF Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL RF Percentage of any payment under with respect to any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL 's RF Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL RF Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent shall furnish deliver to such Participant copies of any Letter standby Letters of Credit issued by any Issuing Lender or modifications or amendments thereto and such other documentation as may be reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit issued by such Issuing Lender shall be irrevocable and not subject to any qualification or exception whatsoever (the respective Issuing Lender's only obligation being to confirm that any documents required to be delivered under such Letter of Credit have been delivered and that they substantially comply on their face with the requirements of such Letter of Credit) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Waters Corp /De/)
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.131.13, 2.14, 2.15, 2.16, 2.17 1.15 or 13.04(c13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such the Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.05(a), such the Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars (or, in the case of any unreimbursed payment made in a Foreign Currency, of the Dollar Equivalent of such unreimbursed payment, as determined by the Issuing Lender on the date on which such unreimbursed payment was made by the Issuing Lender) and in same day funds. If the Administrative Agent so notifies, prior to 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 at the Payment Office for the account of the respective Issuing Lender in Dollars (or, in the case of any unreimbursed payment made in a Foreign Currency, of the Dollar Equivalent thereof) such Participant’s 's RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds Rate (or, in the case of amounts owned in a Foreign Currency, at the Issuing Lender's customary rate for interbank advances) for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an the Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such the Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such the Issuing Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars (or, in the case of any payment received in a Foreign Currency, of the Dollar Equivalent thereof) and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent shall furnish to such Participant copies of any standby Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Manitowoc Co Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 4.02(b) or 13.04(c13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 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 at the Payment Office for the account of the respective Issuing Lender in Dollars such Participant’s RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at at, the overnight Federal Funds Rate greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation for the first three days and at the interest rate otherwise applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to (i) in the case of a Multicurrency Facility Letter of Credit, each Multicurrency Facility RL LenderLender and (ii) in the case of a Dollar Facility Letter of Credit, and each such Dollar Facility RL Lender (each such Lender with respect to any Letter of Credit, in its capacity under this Section 3.04, a “"L/C Participant”) "), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, in a percentage equal to (x) in the extent case of a Multicurrency Facility Letter of Credit, such L/C Participant’s 's Multicurrency Facility RL Percentage or (y) in the case of a Dollar Facility Letter of Credit, such L/C Participant's Dollar Facility RL Percentage, in such Multicurrency Facility Letter of Credit or Dollar Facility Letter of Credit, as the case may be, each drawing or payment made thereunder (each, a "Drawing") and the obligations of the respective Borrower under this Agreement with respect theretothereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Multicurrency Facility RL Lenders or Dollar Facility RL Lenders, as the case may be, as provided in Section 4.01(b) and the L/C Participants shall have no right to receive any portion of any Facing Fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in (x) the Multicurrency Facility Revolving Loan Commitments or and, as a result thereof the Multicurrency Facility RL Percentages Percentages, of the Multicurrency Facility RL Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 Sections 2.13 or 13.04(c)13.04, it is hereby agreed that, with respect to all outstanding Multicurrency Facility Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new Multicurrency Facility RL Percentages of the assignor Multicurrency Facility RL Lenders and assignee Lender(y) the Dollar Facility Revolving Loan Commitments and, as a result thereof the Dollar Facility RL Percentages, of the Dollar Facility RL Lenders pursuant to Sections 2.13 or 13.04, it is hereby agreed that with respect to all outstanding Dollar Facility Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new Dollar Facility RL Percentages of the Dollar Facility RL Lenders. With respect to each Letter of Credit from time to time outstanding, the percentage participations therein of the various Multicurrency Facility RL Lenders (in the case of a Multicurrency Facility Letter of Credit) or Dollar Facility RL Lenders (in the case of a Dollar Facility Letter of Credit) calculated as provided above in this Section 3.04(a) are herein called the "L/C Participation Percentages" of the various Multicurrency Facility RL Lenders or Dollar Facility RL Lenders, as the case may be, in such Letters of Credit. All calculations of the L/C Participation Percentages shall be made from time to time by the Administrative Agent, which calculations shall be conclusive absent manifest error. In addition to the adjustments contemplated above, upon the occurrence of a Sharing Event, in accordance with the provisions of Section 2.14(d), the "L/C Participation Percentages" of the RL Lenders shall be adjusted, so that each RL Lender shall participate in each outstanding Letter of Credit (whether a Multicurrency Facility Letter of Credit or a Dollar Facility Letter of Credit) in accordance with its RL Percentage, in each case as more fully described in Section 2.14(d). In any instance described in the immediately preceding sentence, each RL Lender shall be a L/C Participant with respect to each Letter of Credit and its L/C Participation Percentage in each Letter of Credit shall be determined by the Administrative Agent in accordance with the relevant provisions of Section 2.14(d). Furthermore, upon the occurrence of a Sharing Event and as more fully set forth in Section 2.14, additional sub-participations may be required to be granted by the various RL Lenders in their participations in outstanding Letters of Credit, in each case in accordance with, and subject to the provisions of, Section 2.14.
(b) In determining whether to pay under any Letter of Credit, no the respective Issuing Lender shall have any no obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct (as determined by a court of competent jurisdiction), shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender Account Party or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)Lender.
(c) In the event that any Issuing Lender makes any payment or disbursement under any Letter of Credit issued by it and the Borrower respective Account Party shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant therein (i.e., (A) if no Sharing Event has occurred, either (x) the Multicurrency Facility RL Lenders in the case of a Multicurrency Facility Letter of Credit or (y) the Dollar Facility RL Lenders in the case of a Dollar Facility Letter of Credit or (B) if a Sharing Event has occurred, each RL Lender) of such failure, and each L/C Participant therein shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such L/C Participant’s RL 's L/C Participation Percentage (as relates to the respective Letter of such unreimbursed payment Credit) of the respective Unpaid Drawing (with the amount thereof and the currency in which same is owing to be calculated in accordance with the provisions of Section 3.05(a)) in U.S. Dollars (or, to the extent the respective Unpaid Drawing is, in accordance with Section 3.05(a), to be reimbursed by the respective Account Party in Canadian Dollars, in Canadian Dollars) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. A.M. (New York time) on any Business Day, any L/C Participant required to fund a payment an Unpaid Drawing under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender Lender, in U.S. Dollars (or in Canadian Dollars to the extent the respective Unpaid Drawing is required to be paid by the respective Account Party in Canadian Dollars pursuant to the provisions of Section 3.05(a)), such L/C Participant’s RL 's L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent that, for any reason, such L/C Participant shall not have so made its RL L/C Participation Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such the date the respective Unpaid Drawing occurred until the date such amount is paid to the Administrative Agent for the account of such Issuing Lender at the overnight Federal Funds Rate for (or, in the first three days and case of amounts owed in Canadian Dollars, at the cost to the Administrative Agent of acquiring overnight funds in Canadian Dollars), provided that if any L/C Participant does not make available to the Administrative Agent any amounts required to be made available by it as described above within 2 Business Days after the respective L/C Participant has been notified by the Administrative Agent or the respective Issuing Lender to make such amounts available, then the respective L/C Participant shall pay interest rate applicable on the amounts demanded of it at the same rates payable from time to Revolving Loans that are maintained as Base Rate Loans for each day thereaftertime by the respective Account Party on the respective Unpaid Drawings pursuant to Section 3.05(a). The failure of any L/C Participant to make available to an the Administrative Agent for the account of the respective Issuing Lender its RL relevant L/C Participation Percentage of any payment under any Letter of Credit issued by such Issuing Lender it shall not relieve any other L/C Participant in the respective Letter of Credit of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its RL relevant L/C Participation Percentage of any payment under any such Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent for the account of such Issuing Lender such other L/C Participant’s RL 's relevant L/C Participation Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Issuing Lender any payments from the L/C Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such L/C Participant which has paid its RL relevant L/C Participation Percentage thereof, in U.S. Dollars (or in Canadian Dollars in the case of payments to be made in Canadian Dollars pursuant to Section 3.05(a)) and in same day funds, an amount equal to such L/C Participant’s 's share (based upon on the proportionate aggregate amount originally funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon Each Issuing Lender shall, promptly after the request issuance of, or amendment or modification to, a Standby Letter of Credit, give the Administrative Agent and the respective Account Party written notice of such issuance, amendment or modification, as the case may be, and such notice shall be accompanied by a copy of such Standby Letter of Credit, such amendment or such modification, as the case may be. Promptly upon receipt of such notice, the Administrative Agent shall notify each L/C Participant, in writing, of such issuance, amendment or modification and if any ParticipantL/C Participant shall so request, the Administrative Agent shall furnish to said L/C Participant with a copy of such Participant copies of any Standby Letter of Credit issued by any Issuing Lender and Credit, such other documentation amendment or such modification, as the case may reasonably be requested by such Participantbe.
(f) Each Issuing Lender (other than DBTCA) shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by facsimile transmission, the aggregate daily Stated Amount available to be drawn under the outstanding Trade Letters of Credit issued by such Issuing Lender for the previous week.
(g) The obligations of the L/C Participants to make payments to each the Administrative Agent for the account of the respective Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower any Credit Party or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative any Agent, any Lender, any Issuing Lender, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction -85- between the Borrower any Credit Party or any Subsidiary of the Borrower its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided that the L/C Participants shall not be obligated to reimburse such Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction). Any action taken or omitted to be taken by any Issuing Lender under or in connection with any Letter of Credit shall not create for such Issuing Lender any resulting liability to the L/C Participants or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction).
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than the Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 1.13 or 13.04(c13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such the Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.05(a), such the Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 12:00 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 respective Issuing Lender in Dollars such Participant’s 's RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an the Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such the Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such the Issuing Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
or (v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Infousa Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender or CL Lender, and as the case may be (each such RL Lender (or CL Lender, as the case may be, with respect to any Letter of Credit, in its capacity under this Section 3.042.04, a “"L/C Participant”) "), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, in a percentage equal to such L/C Participant's RL Percentage or CL Percentage, as the extent of such Participant’s RL Percentagecase may be, in such Letter of Credit, each drawing or payment Drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the respective Lenders as provided in Section 3.01(b) and the L/C Participants shall have no right to receive any portion of any Facing Fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or the RL Percentages of the respective RL Lenders or the Credit-Linked Commitments or the CL Percentages of the respective CL Lenders, in each case pursuant to Section 2.131.13, 2.14, 2.15, 2.16, 2.17 1.14 or 13.04(c13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lenderor CL Percentages, as the case may be, of the respective Lenders.
(b) In determining whether to pay under any Letter of Credit, no the respective Issuing Lender shall have any no obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is if taken or omitted to be taken with in the absence of gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision), shall not create for such Issuing Lender any resulting liability to the Borrower, any Subsidiary thereof or any Lender.
(ci) In the event that any Issuing Lender makes any payment or disbursement under any RL Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant therein of such failure, and each L/C Participant therein shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such L/C Participant’s 's RL Percentage of such unreimbursed payment the respective RL Unpaid Drawing in Dollars (or, to the extent that the respective RL Unpaid Drawing is in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof, as determined by the respective Issuing Lender on the date on which such payment or disbursement was made under the respective RL Letter of Credit), and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 12:00 Noon (New York time) on any Business Day, any L/C Participant required to fund a payment an RL Unpaid Drawing under a an RL Letter of Credit, such L/C Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender Lender, in Dollars (or, to the extent that the respective RL Unpaid Drawing is in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof), such L/C Participant’s 's RL Percentage of the amount of such payment on such Business Day in same day fundsfunds (or on the immediately succeeding Business Day to the extent that the respective notice is given by the Administrative Agent to any such L/C Participant on or after 12:00 Noon (New York time) on any such Business Day). If and to the extent that, for any reason, such L/C Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing LenderLender as required above, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such the date the respective RL Unpaid Drawing occurred until the date such amount is paid to the Administrative Agent for the account of such Issuing Lender at the overnight Federal Funds Rate for (or, in the first three days and case of an RL Unpaid Drawing under an RL Letter of Credit denominated in an Alternative Currency, at the respective Issuing Lender's customary rate for interbank advances), provided that if any L/C Participant does not make available to the Administrative Agent any amounts required to be made available by it as described above within three Business Days after the respective L/C Participant has been notified by the Administrative Agent or the respective Issuing Lender to make such amounts available, then the respective L/C Participant shall pay interest rate applicable on the amounts demanded of it at the same rates payable from time to Revolving Loans that are maintained as Base Rate Loans for each day thereaftertime by the Borrower on the respective RL Unpaid Drawings pursuant to Section 2.05(a). The failure of any L/C Participant to make available to an the Administrative Agent for the account of the respective Issuing Lender its RL Percentage of any payment under any RL Letter of Credit issued by such Issuing Lender it shall not relieve any other L/C Participant in the respective RL Letter of Credit of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its RL Percentage of any payment under any such RL Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent for the account of such Issuing Lender such other L/C Participant’s 's RL Percentage of any such payment.
(ii) In the event that any Issuing Lender makes any payment or disbursement under any CL Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant therein and the Deposit Bank of such failure, and each CL Lender hereby irrevocably authorizes the Deposit Bank (and the Deposit Bank hereby agrees) to reimburse such Issuing Lender for such amount in Dollars (or, to the extent that the respective CL Unpaid Drawing is in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof, as determined by the respective Issuing Lender on the date on which such payment or disbursement was made under the respective CL Letter of Credit) solely from such CL Lender's CL Percentage of the Credit-Linked Deposits on deposit with the Deposit Bank in the Credit-Linked Deposit Account.
(d) Whenever an any Issuing Lender receives a payment from the Borrower of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Issuing Lender any payments from the L/C Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such L/C Participant which has paid its RL Percentage thereof or CL Percentage thereof, as the case may be, in Dollars (or, to the extent that the respective payment is in respect of a Letter of Credit denominated in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof) and in same day funds, an amount equal to such L/C Participant’s 's share (based upon on the proportionate aggregate amount originally funded by such L/C Participant to the aggregate amount funded by all relevant L/C Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participationsparticipations (it being understood and agreed that any such payment to be made pursuant to this Section 2.04(d) to an L/C Participant which is a CL Lender shall be made by such Issuing Lender to the Administrative Agent for the account of such CL Lender and for deposit by the Deposit Bank in the Credit-Linked Deposit Account).
(e) Upon Each Issuing Lender shall, promptly after the request issuance of, or amendment or modification to, a Standby Letter of Credit, give the Administrative Agent and the Borrower written notice of such issuance, amendment or modification, as the case may be, and such notice shall be accompanied by a copy of such Standby Letter of Credit, such amendment or such modification, as the case may be. Promptly upon receipt of such notice, the Administrative Agent shall notify each L/C Participant, in writing, of such issuance, amendment or modification and if any ParticipantL/C Participant shall so request, the Administrative Agent shall furnish to said L/C Participant with a copy of such Participant copies of any Standby Letter of Credit issued by any Issuing Lender and Credit, such other documentation amendment or such modification, as the case may reasonably be requested by such Participantbe.
(f) Each Issuing Lender shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by facsimile transmission, the aggregate daily Stated Amount available to be drawn under the outstanding Letters of Credit issued by such Issuing Lender for the previous week.
(g) The obligations of the L/C Participants to make payments to each the Administrative Agent for the account of the respective Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower any Credit Party or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Collateral Agent, any Lender, any Issuing Lender, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower any Credit Party or any Subsidiary of the Borrower its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided that the L/C Participants shall not be obligated to reimburse such Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of deliberate acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). Any action taken or omitted to be taken by any Issuing Lender under or in connection with any Letter of Credit shall not create for such Issuing Lender any resulting liability to the L/C Participants or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than such Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL 's Percentage, in such Letter of Credit, Credit and each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.131.13, 2.141.14, 2.153.02(b), 2.16, 2.17 13.04 or 13.04(c13.12(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee LenderLender or of all Lenders, as the case may be.
(ba) In determining whether to pay under any Letter of Credit, no such Issuing Lender shall have any no obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender Borrower or any other Person Lender, unless such action is taken or omitted to be taken with was the result of gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)proceeding) of such Issuing Lender.
(cb) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. A.M. (New York City time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective such Issuing Lender in Dollars such Participant’s RL 's Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective such Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an such Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under with respect to any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL 's Percentage of any such payment.
(dc) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(ed) Upon the request of any Participant, the Administrative Agent shall furnish deliver to such Participant copies of any Letter Letters of Credit issued by any Issuing Lender or modifications or amendments thereto and such other documentation as may be reasonably be requested by such Participant.
(fe) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit issued thereunder shall be irrevocable and not subject to any qualification or exception whatsoever (the respective Issuing Lender's only obligation being to confirm that any documents required to be delivered under such Letter of Credit have been delivered and that they substantially comply on their face with the requirements of such Letter of Credit) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than such Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “Participant”) ), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and Acceptances created thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 1.13 or 13.04(c)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit Credit, Acceptances created thereunder and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee LenderLender or of all Lenders, as the case may be.
(b) In determining whether to pay or create an Acceptance under any Letter of Credit, no such Issuing Lender shall have any no obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is if taken or omitted to be taken with in the absence of gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each casemisconduct, as determined by a court of competent jurisdiction in a final and non-–appealable decision)proceeding, shall not create for such Issuing Lender any resulting liability to the Borrowers or any Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it or any Acceptance created thereunder and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 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 at the Payment Office for the account of the respective such Issuing Lender in Dollars such Participant’s RL Percentage of the amount of such payment (using the Dollar Equivalent thereof in the case of any such payment in respect of a Letter of Credit denominated in an Alternate Currency, determined on the date of such payment) on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective such Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an such Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender or Acceptance shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under with respect to any Letter of Credit or Acceptance created thereunder on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent relevant Issuing Lender shall furnish deliver to such Participant copies of any Letter of Credit issued by any Issuing Lender it and such other documentation as may be reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit and Acceptances issued thereunder shall be irrevocable and not subject to any qualification or exception whatsoever (the respective Issuing Lender’s only obligation being to confirm that any documents required to be delivered under such Letter of Credit appeared to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Borrowers or any of its 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 Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, any Acceptance, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender (each such Lender, and each such RL Lender (in its capacity under this Section 3.042.03, a “Participant”) ), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor therefore or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13Sections 1.12, 2.14, 2.15, 2.16, 2.17 3.02(b) or 13.04(c)15.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Percentages of the assignor and assignee LenderLender or of all Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no such Issuing Lender shall have any no obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued if taken or omitted in the absence of gross negligence or willful misconduct, as determined by it a court of competent jurisdiction, shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender Party or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.04(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 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 respective such Issuing Lender in Dollars such Participant’s RL Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective such Issuing Lender, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafterRate. The failure of any Participant to make available to an the Administrative Agent for the account of such Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its RL Percentage of any payment under any such Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Issuing Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an any Issuing Lender receives a payment of a reimbursement obligation as to which it the Administrative Agent has received (for the account of any such Issuing Lender) any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall pay distribute to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Each Issuing Lender shall, promptly after the issuance of, or amendment to, a Letter of Credit give the Administrative Agent and the Borrower written notice of such issuance or amendment, as the case may be, and such notice shall be accompanied by a copy of the issued Letter of Credit or amendment, as the case may be. Upon receipt of such notice, the request Administrative Agent shall promptly notify each Participant, in writing, of any Participantsuch issuance or amendment and in the event a Participant shall so request, the Administrative Agent shall furnish to such Participant copies with a copy of any such Letter of Credit 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 any such Issuing Lender and 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 other documentation as may reasonably preceding calendar month the aggregate daily Stated Amount available to be requested by drawn under all outstanding Letters of Credit during such Participantcalendar month.
(fg) The obligations of the Participants to make payments to each the Administrative Agent for the account of the respective Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Lender, any Issuing Lender, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 4.02(b) or 13.04(c13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 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 at the Payment Office for the account of the respective Issuing Lender in Dollars such Participant’s RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Holdings or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower Holdings or any Subsidiary of the Borrower Holdings and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender Bank of any Letter of Credit, such the Issuing Lender Bank shall be deemed to have sold and transferred to each RL LenderBank, and other than the Issuing Bank (each such RL Lender (Bank, in its capacity under this Section 3.041.16, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing LenderBank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL 's Loan Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Loan Percentages of the Lenders Banks pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 or 13.04(c)12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 1.16 to reflect the new RL Loan Percentages of the assignor and assignee LenderBank, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender Bank shall not have any an obligation relative to the other Lenders Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender Bank under or in connection with any Letter of Credit issued if taken or omitted in the absence of gross negligence or willful misconduct (as finally determined by it a court of competent jurisdiction), shall not create for such the Issuing Lender Bank any resulting liability to the Borrower, any other Credit Party, any Lender Bank or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)Person.
(c) In the event that any the Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender Bank pursuant to Section 3.05(a1.17(a), such the Issuing Lender Bank shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender Bank the amount of such Participant’s RL 's Loan Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 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 respective Issuing Lender Bank in Dollars such Participant’s RL 's Loan Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Loan Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing LenderBank, such Participant agrees to pay to such the Issuing LenderBank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender Bank at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an the Issuing Lender Bank its RL Loan Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such the Issuing Lender Bank its RL Loan Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such the Issuing Lender Bank such other Participant’s RL 's Loan Percentage of any such payment.
(d) Whenever an the Issuing Lender Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to the Administrative Agent and the Administrative Agent Bank shall pay to each such Participant which has paid its RL Loan Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Eldertrust)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any (x) RL Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and (y) CL Letter of Credit, such Issuing Lender shall be deemed to have sold and issued to each CL Lender, (each such RL Lender (or CL Lender, as the case may be, in its capacity under this Section 3.042.04, a “"Participant”") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage or CL Percentage, as the case may be, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the RL Lenders or in the CL Percentages of the CL Lenders, in each case pursuant to Section 2.131.13, 2.14, 2.15, 2.16, 2.17 1.15 or 13.04(c13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages or CL Percentages of the assignor and assignee RL Lender or CL Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).
(ci) In the event that any an Issuing Lender makes any payment under any RL Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each relevant Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a RL Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in Dollars such Participant’s 's RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any such Participant to make available to an Issuing Lender its RL Percentage of any payment under any RL Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any RL Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s 's RL Percentage of any such payment.
(ii) In the event that an Issuing Lender makes any payment under any CL Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2.05(a) on or before the seventh day immediately succeeding the date such payment is made, each CL Lender hereby irrevocably authorizes the Administrative Agent to reimburse such Issuing Lender for such amount solely from such CL Lender's CL Percentage of the Credit-Linked Deposits on deposit with the Administrative Agent in the Credit-Linked Deposit Account.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage or CL Percentage thereof, as the case may be, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all such Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase funding of the respective participationsparticipations (it being understood and agreed that any such payment to be made pursuant to this Section 2.04(d) to a Participant which is a CL Lender shall be made by such Issuing Lender to the Administrative Agent for the account of such CL Lender and for deposit in the Credit-Linked Deposit Account).
(e) Upon the request of any Participant, the Administrative Agent each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence or continuation of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by an the respective Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than such Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 1.13 or 13.04(c)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the respective Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as finally determined by a court of competent jurisdiction in a final and non-appealable decisionjurisdiction).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a2.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. A.M. (Boston, Massachusetts time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in Dollars such Participant’s 's RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.day
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by an Issuing Lender a Letter of Credit Issuer of any Letter of Credit, such Issuing Lender Letter of Credit Issuer shall be deemed to have sold and transferred to each other RL LenderBank, and each such RL Lender Bank (in its capacity under this Section 3.04each, a “"Participant”") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest inter est and participation, to the extent of such Participant’s 's Dollar RL Percentage, in such Letter of Credit, each substitute Letter of Credit, each drawing or payment made thereunder and the obligations of the U.S. Borrower under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the XX Xxxxx as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees with respect to such Letters of Credit) and any security therefor or guaranty pertaining thereto; provided that, upon the occurrence of a Sharing Event, the -------- participations described above shall be automatically adjusted so that each RL Bank shall have a participation in all then outstanding Letters of Credit, and related obligations as described above, in a percentage equal to its Sharing Percentage (which adjustment shall occur concurrently with the adjustments described in Section 1.15). Upon any change in the Revolving Loan Commitments or the Dollar RL Percentages of the Lenders XX Xxxxx pursuant to Section 2.131.13 or 13.04(b) (or, 2.14in the circumstances provided in the proviso to the immediately preceding sentence, 2.15, 2.16, 2.17 the Sharing Percentages of the XX Xxxxx pursuant to this Agreement) or 13.04(c)as a result of a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new Dollar RL Percentages (or, in the circumstances provided in the proviso to the immediately preceding sentence, the Sharing Percentages) of the assignor assigning and assignee LenderBank or of all XX Xxxxx, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender Letter of Credit Issuer shall have any obligation relative to the other Lenders Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender any Letter of Credit Issuer under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Lender Letter of Credit Issuer any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)liability.
(c) In the event that any Issuing Lender Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the U.S. Borrower shall not have reimbursed such amount in full to such Issuing Lender the Letter of Credit Issuer pursuant to Section 3.05(a2.04(a), such Issuing Lender Letter of Credit Issuer shall promptly notify the Administrative Agent, which and the Administrative Agent shall promptly notify each Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender Letter of Credit Issuer, the amount of such Participant’s 's Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing Percentage) of such unreimbursed payment in U.S. Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. on any Business Day, notifies any Participant required to fund a payment under a Letter of CreditCredit prior to 11:00 A.M. (New York time) on any Business Day, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in Dollars Letter of Credit Issuer such Participant’s 's Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing Percentage) of the amount of such payment on such Business Day in same day fundsfunds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Participant shall make such payment on the immediately following Business Day). If and to the extent such Participant shall not have so made its Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing Percentage) of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing LenderLetter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing LenderLetter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafterRate. The failure of any Participant to make available to an Issuing Lender the Administrative Agent for the account of the respective Letter of Credit Issuer its Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing Percentage) of any payment under any Letter of Credit issued by such Issuing Lender it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender Letter of Credit Issuer its Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing Percentage) of any payment under any such Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Issuing Lender Letter of Credit Issuer such other Participant’s 's Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing Percentage) of any such payment.
(d) Whenever an Issuing Lender any Letter of Credit Issuer receives a payment of a reimbursement xxxx bursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from the Participants pursuant to clause (c) above, such Issuing Lender Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its Dollar RL Percentage (or, after the occurrence of a Sharing Event, its Sharing Percentage) thereof, in U.S. Dollars and in same day funds, an amount equal to such Participant’s share 's Dollar RL Percentage (based upon or, after the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participantsoccurrence of a Sharing Event, its Sharing Percentage) of the principal amount of such reimbursement obligation thereof and interest thereon accruing after the purchase of the respective participations.
(e) Each Letter of Credit Issuer shall, promptly after each issuance of, or amendment or modification to, a Standby Letter of Credit issued by it, give the Administrative Agent and the U.S. Borrower written notice of the issuance of, or amendment or modification to, such Standby Letter of Credit, which notice shall be accompanied by a copy of the Standby Letter of Credit or Standby Letters of Credit issued by it and each such amendment or modification thereto. Upon the request receipt of any Participantsuch written notice from a Letter of Credit Issuer, the Administrative Agent shall furnish promptly forward a copy of such notice and accompanying documentation to such Participant copies of any Letter of Credit issued by any Issuing Lender and such other documentation as may reasonably be requested by such each Participant.
(f) Each Letter of Credit Issuer (other than CSFB) shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by facsimile transmission, the aggregate daily Stated Amount available to be drawn under the outstanding Trade Letters of Credit issued by such Letter of Credit Issuer for the previous week. The Administrative Agent shall, within 10 days after the last Business Day of each calendar month, deliver to each Participant a report setting forth for such preceding calendar month the aggregate daily Stated Amount available to be drawn under all outstanding Trade Letters of Credit during such calendar month.
(g) The obligations of the Participants to make payments to each Issuing Lender the Administrative Agent for the account of the respective Letter of Credit Issuer with respect to Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the U.S. Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative any Agent, any ParticipantLetter of Credit Issuer, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the U.S. Borrower or any Subsidiary of the Borrower its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (MTL Inc)
Letter of Credit Participations. (a) Immediately upon the ------------------------------- issuance by an any Issuing Lender Bank of any Letter of Credit, such Issuing Lender Bank shall be deemed to have sold and transferred to each RL LenderBank with a Revolving Loan Commitment, and other than such Issuing Bank (each such RL Lender (Bank, in its capacity under this Section 3.042.03, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderBank, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL 's Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders Banks pursuant to Section 2.13Sections 1.13, 2.14, 2.15, 2.16, 2.17 13.04 or 13.04(c)13.12, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Percentages of the assignor and assignee LenderBank or of all Banks with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the respective Issuing Lender Bank shall have any no obligation relative to the other Lenders Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender Bank under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Lender Bank any resulting liability to the Borrower, the Parent, any other Credit Party, any Lender Subsidiary of the Parent or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)Bank.
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender Bank pursuant to Section 3.05(a2.04(a), such Issuing Lender Bank shall promptly notify the Administrative Agent, which shall promptly notify each Participant Participant, of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender Bank the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 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 at the Payment Office for the account of the respective such Issuing Lender Bank in Dollars such Participant’s RL 's Percentage of the amount of such payment on such Business Day (or, if notice is given after 12:00 Noon (New York time) on any Business Day, on the next Business Day) in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective such Issuing LenderBank, such Participant agrees to pay to such Issuing LenderBank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender Bank at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafterRate. The failure of any Participant to make available to an such Issuing Lender Bank its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender Bank its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender Bank such other Participant’s RL 's Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender Bank shall pay forward such payment to the Administrative Agent and the Administrative Agent Agent, which in turn shall pay distribute to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent each Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant. In addition, each Issuing Bank (other than BTCo) shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by telecopier transmission, the aggregate daily Stated Amount available to be drawn under the outstanding Trade Letters of Credit issued by such Issuing Bank for the previous week. The Administrative Agent shall, within 10 days after the last day of each calendar month, deliver to each Participant a report setting forth for such period the aggregate daily Stated Amount available to be drawn under all outstanding Trade Letters of Credit during the preceding calendar month.
(f) The obligations of the Participants to make payments to each Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Bank, any Issuing Bank, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than the Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 1.13 or 13.04(c)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued if taken or omitted in the absence of gross negligence or willful misconduct (as finally determined by it a court of competent jurisdiction), shall not create for such the Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)Person.
(c) In the event that any the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.05(a), such the Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 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 respective Issuing Lender in Dollars such Participant’s 's RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an the Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such the Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such the Issuing Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender a Letter of Credit Issuer of any Letter of Credit (and on the Closing Date with respect to any Existing Letter of Credit), such Issuing Lender Letter of Credit Issuer shall be deemed to have sold and transferred to each RL LenderLender with a Commitment, and each such RL Lender (in its capacity under this Section 3.04, each a “"Participant”") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Lender's Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and thereunder, the obligations of the Borrower under this Agreement with respect thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Lenders as provided in section 4.2 and the Participants shall have no right to receive any portion of any fees of the nature contemplated by section 4.3), the obligations of any Subsidiary of the Borrower under any Letter of Credit Documents pertaining thereto, and any security therefor for, or guaranty pertaining theretoto, any of the foregoing. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 or 13.04(csection 13.4(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 section 3.4 to reflect the new RL Percentages of the assignor assigning and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender a Letter of Credit Issuer shall not have any obligation relative to the other Lenders Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender a Letter of Credit Issuer under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Lender Letter of Credit Issuer any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)liability.
(c) In the event that any Issuing Lender a Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed (or caused any applicable Subsidiary to reimburse) such amount in full to such Issuing Lender Letter of Credit Issuer pursuant to Section 3.05(asection 3.3(a), such Issuing Lender Letter of Credit Issuer shall promptly notify the Administrative Agent, which and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender Letter of Credit Issuer, the amount of such Participant’s RL 's Percentage of such unreimbursed payment in Dollars U.S. dollars and in same day funds, provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies, prior to 11:00 a.m. on any Business Day, notifies any Participant required to fund a payment under a Letter of CreditCredit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in Dollars relevant Letter of Credit Issuer such Participant’s RL 's Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lenderrelevant Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing LenderLetter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Lender Letter of Credit Issuer at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafterEffective Rate. The failure of any Participant to make available to an Issuing Lender the Administrative Agent for the account of the relevant Letter of Credit Issuer its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender Letter of Credit Issuer its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Issuing Lender Letter of Credit Issuer such other Participant’s RL 's Percentage of any such payment.
(d) Whenever an Issuing Lender a Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from the Participants pursuant to clause (csection 3.4(c) above, such Issuing Lender Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which that has paid its RL Percentage thereof, in Dollars U.S. dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) 's Percentage of the principal amount of such reimbursement obligation thereof and interest thereon accruing after the purchase of the respective participations, as and to the extent so received.
(e) Upon the request of any Participant, the Administrative Agent shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of each Issuing Lender Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, set-off defense or other right which that the Borrower (or any of its Subsidiaries Subsidiary) may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person person for whom any such transferee may be acting), the Administrative Agent, any ParticipantLetter of Credit Issuer, any Lender, or any other Personperson, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower (or any Subsidiary of the Borrower Subsidiary) and the beneficiary named in any such Letter of Credit), other than any claim that the Borrower (or any Subsidiary that is the account party with respect to a Letter of Credit) may have against any applicable Letter of Credit Issuer for gross negligence or willful misconduct of such Letter of Credit Issuer in making payment under any applicable Letter of Credit;
(iii) any draft, certificate or any other document presented under any the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; : or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified by the Borrower, the Participants will reimburse and indemnify the Letter of Credit Issuer, in proportion to their respective Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature that may be imposed on, asserted against or incurred by the Letter of Credit Issuer in performing its respective duties in any way related to or arising out of its issuance of Letters of Credit, provided that no Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the Letter of Credit Issuer's gross negligence or willful misconduct.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 2.13 or 13.04(c12.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to be genuine and correct and to have been signed, sent or made by a proper Person and substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the any Borrower, any other Credit Loan Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement bad faith on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision). The Issuing Lender may employ agents and attorneys-in-fact in connection with any matter relating to Letters of Credit and shall not be liable for the negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.
(c) The Loan Parties assume all risks of the acts, omissions or misuses of any Letter of Credit by the beneficiary. In connection with issuance of any Letter of Credit, none of Administrative Agent, Issuing Lender or any Lender shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any related documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any related documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any related documents or of any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in a Letter of Credit or the related documents; any deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract between a shipper or vendor and a Loan Party (or an Affiliate thereof); errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical terms; the misapplication by a beneficiary of any Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the control of the Issuing Lender, the Administrative Agent or any Lender, including any act or omission of a Governmental Authority. The rights and remedies of the Issuing Lender under the Loan Documents shall be cumulative. The Issuing Lender shall be fully subrogated to the rights and remedies of each beneficiary whose claims against the Loan Parties are discharged with proceeds of any Letter of Credit.
(d) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower Borrowers shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in U.S. Dollars and in same day immediately available 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 make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in U.S. Dollars such Participant’s RL Percentage of the amount of such payment on such Business Day in same day immediately available funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(de) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(ef) Upon the request of any Participant, the Administrative Agent each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(fg) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Holdings or any of its Subsidiaries subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower Holdings or any Subsidiary subsidiary of the Borrower Holdings and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Loan Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Abl Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than the Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 1.13 or 13.04(c13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such the Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.05(a), such the Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 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 respective Issuing Lender in Dollars such Participant’s 's RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an the Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such the Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such the Issuing Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Infousa Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than the Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 2.13 or 13.04(c)12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee RL Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued if taken or omitted in the absence of gross negligence or willful misconduct (as finally determined by it a court of competent jurisdiction), shall not create for such the Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)Person.
(c) In the event that any the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a), such the Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 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 respective Issuing Lender in Dollars such Participant’s 's RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an the Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such the Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such the Issuing Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than the Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 2.13 or 13.04(c13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such the Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a), such the Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 12:00 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 respective Issuing Lender in Dollars such Participant’s 's RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an the Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such the Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such the Issuing Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
or (v) the occurrence of any Default or Event of Default.
(g) All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Restatement Effective Date shall be subject to and governed by the terms and conditions hereof, it being understood that on the Restatement Effective Date, each RL Lender shall be deemed irrevocably and unconditionally to have purchased and received from the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Lender's RL Percentage, in each Existing Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto shall be deemed to have purchased a participation in the Existing Letters of Credit.
Appears in 1 contract
Samples: Credit Agreement (Infousa Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an the Issuing Lender of any Letter of Credit, such the Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and other than the Issuing Lender (each such RL Lender (Lender, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s 's RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 1.13 or 13.04(c)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the Issuing Lender shall not have any an obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an the Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such the Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as finally determined by a court of competent jurisdiction in a final and non-appealable decisionjurisdiction).
(c) In the event that any the Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such the Issuing Lender pursuant to Section 3.05(a2.05(a), such the Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s 's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. A.M. (New York City time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in Dollars such Participant’s 's RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such the Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such the Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an the Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such the Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such the Issuing Lender such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an the Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such the Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each the Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative any Agent, any Participant, any other Lender or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
; (iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender a Letter of Credit Issuer of any Letter of Credit (and on the Second Restatement Effective Date, in the case of Existing Letters of Credit), such Issuing Lender Letter of Credit Issuer shall be deemed to have sold and transferred to each RL other Lender (each such other Lender, and each such RL Lender (in its capacity under this Section 3.042.03, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each, a "participation"), to the extent of such Participant’s RL Percentage's Adjusted Percentage (with each such purchase by a Lender (other than a Non-Extending Lender) prior to its First Maturity Date to be applied as a utilization of the Short-Term Commitment and Long-Term Commitment of such Lender on a pro rata basis (based upon the relative amounts of the Short-Term Commitment and the Long-Term Commitment of such Lender, in each case as in effect immediately prior to giving effect to such purchase)), 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 that remains in effect after the Original Effective Date, or guaranty pertaining theretothereto (although Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the Participants as provided in Section 3.01(c) and the Participants shall have no right to receive any portion of any Facing Fees). Upon any change in the Revolving Loan Commitments or RL Percentages (and the Short-Term Commitments and Long-Term Commitments, if any) of the Lenders pursuant to Section 2.131.15 or 12.04, 2.14the termination of the Commitment of a Non-Extending Lender on its Final Maturity Date, 2.15the termination of the Short-Term Commitment of any Lender with such a commitment on its First Maturity Date, 2.16, 2.17 the termination of a Commitment of a Non-Continuing Lender or 13.04(c)the occurrence of any Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.03 to reflect the new RL Adjusted Percentages of the assignor and assignee Lender, of all Lenders, all Continuing Lenders or all Non-Defaulting Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender the Letter of Credit Issuer issuing same shall have any no obligation relative to the other Lenders 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 Lender a Letter of Credit Issuer under or in connection with any Letter of Credit issued by it it, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Lender Letter of Credit Issuer any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)liability.
(c) In the event that any Issuing Lender Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender Letter of Credit Issuer pursuant to Section 3.05(a2.04(a), such Issuing Lender Letter of Credit Issuer shall promptly notify the Administrative Agent, which shall promptly notify Agent and each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender Letter of Credit Issuer, the amount of such Participant’s RL 's Adjusted Percentage of such unreimbursed payment in Dollars lawful money of the United States of America and in same day funds. If funds (with each such payment by a Lender (other than a Non-Extending Lender) prior to its First Maturity Date to be applied as a utilization of the Short-Term Commitment and Long-Term Commitment of such Lender on a pro rata basis (based upon the relative amounts of the Short-Term Commitment and the Long-Term Commitment of such Lender, in each case as in effect immediately prior to giving effect to such payment)); provided, however, that no Participant shall be obligated to pay to the Administrative Agent for the account of such Letter of Credit Issuer its Adjusted Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence as determined by a court of competent jurisdiction on the part of such Letter of Credit Issuer. If such Letter of Credit Issuer so notifies, prior to 11:00 a.m. 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 respective Issuing Lender in Dollars such Letter of Credit Issuer such Participant’s RL 's Adjusted Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Adjusted Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lendersuch Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing LenderLetter of Credit Issuer, forthwith on demand such amount, together with interest thereon, thereon for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Lender Letter of Credit Issuer at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafterRate. The failure of any Participant to make available to an Issuing Lender the Administrative Agent for the account of the applicable Letter of Credit Issuer its RL Adjusted Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender Letter of Credit Issuer its RL Adjusted Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender the Administrative Agent such other Participant’s RL 's Adjusted Percentage of any such payment.
(d) Whenever an Issuing Lender any Letter of Credit Issuer receives a payment in respect of a an unpaid reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from the Participants pursuant to the preceding clause (c) above), such Issuing Lender Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL Adjusted Percentage thereofof such reimbursement obligation, in Dollars lawful money of the United States of America and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participationsparticipations (with each such payment to a Lender (other than a Non-Extending Lender) on or prior to its First Maturity Date to be applied to reduce the utilization of the Short-Term Commitment and Long-Term Commitment of such Lender on a pro rata basis (based upon the relative amounts of the Short-Term Commitment and the Long-Term Commitment of such Lender, in each case as in effect immediately prior to giving effect to such payment)).
(e) Upon the request of any Participant, the Administrative Agent shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender the Administrative Agent for the account of the Letter of Credit Issuers with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (except as expressly provided in Section 2.03(c)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any ParticipantLetter of Credit Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or;
(v) the occurrence of any Default or Event of Default; or
(vi) the failure of any condition precedent set forth in Section 5 hereof to have been satisfied at the time of the issuance of any Letter of Credit unless the applicable Letter of Credit Issuer shall have received a notice in writing to such effect from the Required Lenders pursuant to Section 2.01(b)(iv) hereof prior to the issuance of such Letter of Credit.
Appears in 1 contract
Samples: Credit Agreement (Rj Reynolds Tobacco Holdings Inc)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower U.S. Borrowers, the Australian Borrowers, the Canadian Borrowers, the Dutch Borrowers or the U.K. Borrowers, as the case may be, under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 Section 2.14 or 13.04(cSection 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the any Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower U.S. Borrowers, the Australian Borrowers, the Canadian Borrowers, the Dutch Borrowers or the U.K. Borrowers, as applicable, shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in U.S. Dollars and (or, in same day the case of any unreimbursed payment made in a currency other than U.S. Dollars, the U.S. Dollar Equivalent of such unreimbursed payment, as determined by the Issuing Lender on the date on which such unreimbursed payment was made by such Issuing Lender) in immediately available funds. If the Administrative Agent so notifies, prior to 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 make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in U.S. Dollars (or, in the case of any unreimbursed payment made in a currency other than U.S. Dollars, the U.S. Dollar Equivalent thereof) such Participant’s RL Percentage of the amount of such payment on such Business Day in same day immediately available funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate (or, in the case of any unreimbursed payment made in a currency other than U.S. Dollars, at the respective Issuing Lender’s customary rate for interbank advances) for the first three days and at the interest rate applicable to U.S. Dollar Denominated Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in U.S. Dollars (or, in the case of any unreimbursed payment made in a currency other than U.S. Dollars, the U.S. Dollar Equivalent thereof) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower Holdings or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower Holdings or any Subsidiary of the Borrower Holdings and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender a Letter of Credit Issuer of any Letter of Credit (and on the Closing Date with respect to any Existing Letter of Credit), such Issuing Lender Letter of Credit Issuer shall be deemed to have sold and transferred to each RL LenderLender with a Commitment, and each such RL Lender (in its capacity under this Section 3.04, each a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such ParticipantLender’s RL Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and thereunder, the obligations of the Borrower under this Agreement with respect thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Lenders as provided in section 4.2 and the Participants shall have no right to receive any portion of any fees of the nature contemplated by section 4.3), the obligations of any Subsidiary of the Borrower under any Letter of Credit Documents pertaining thereto, and any security therefor for, or guaranty pertaining theretoto, any of the foregoing. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 or 13.04(csection 13.4(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 section 3.4 to reflect the new RL Percentages of the assignor assigning and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender a Letter of Credit Issuer shall not have any obligation relative to the other Lenders Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender a Letter of Credit Issuer under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Lender Letter of Credit Issuer any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)liability.
(c) In the event that any Issuing Lender a Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed (or caused any applicable Subsidiary to reimburse) such amount in full to such Issuing Lender Letter of Credit Issuer pursuant to Section 3.05(asection 3.3(a), such Issuing Lender Letter of Credit Issuer shall promptly notify the Administrative Agent, which and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender Letter of Credit Issuer, the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars U.S. dollars and in same day funds, provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies, prior to 11:00 a.m. on any Business Day, notifies any Participant required to fund a payment under a Letter of CreditCredit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in Dollars relevant Letter of Credit Issuer such Participant’s RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lenderrelevant Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Issuing LenderLetter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Lender Letter of Credit Issuer at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafterEffective Rate. The failure of any Participant to make available to an Issuing Lender the Administrative Agent for the account of the relevant Letter of Credit Issuer its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender Letter of Credit Issuer its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Issuing Lender Letter of Credit Issuer such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender a Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from the Participants pursuant to clause (csection 3.4(c) above, such Issuing Lender Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which that has paid its RL Percentage thereof, in Dollars U.S. dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) Percentage of the principal amount of such reimbursement obligation thereof and interest thereon accruing after the purchase of the respective participations, as and to the extent so received.
(e) Upon the request of any Participant, the Administrative Agent shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of each Issuing Lender Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, set-off defense or other right which that the Borrower (or any of its Subsidiaries Subsidiary) may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person person for whom any such transferee may be acting), the Administrative Agent, any ParticipantLetter of Credit Issuer, any Lender, or any other Personperson, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower (or any Subsidiary of the Borrower Subsidiary) and the beneficiary named in any such Letter of Credit), other than any claim that the Borrower (or any Subsidiary that is the account party with respect to a Letter of Credit) may have against any applicable Letter of Credit Issuer for gross negligence or willful misconduct of such Letter of Credit Issuer in making payment under any applicable Letter of Credit;
(iii) any draft, certificate or any other document presented under any the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; : or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified by the Borrower, the Participants will reimburse and indemnify the Letter of Credit Issuer, in proportion to their respective Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature that may be imposed on, asserted against or incurred by the Letter of Credit Issuer in performing its respective duties in any way related to or arising out of its issuance of Letters of Credit, provided that no Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the Letter of Credit Issuer’s gross negligence or willful misconduct.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender a Letter of Credit Issuer of any Letter of Credit, such Issuing Lender Letter of Credit Issuer shall be deemed to have sold and transferred to each RL LenderBank, and each such RL Lender Bank (in its capacity under this Section 3.04each, a “"L/C Participant”") shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Bank's RL Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, thereto (although Letter of Credit Fees shall be payable directly to the Agent for the account of the XX Xxxxx as provided in Section 3.01(b) and the L/C Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders XX Xxxxx pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 1.13 or 13.04(c12.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoto Letters of Credit, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04(a) to reflect the new RL Percentages of the assignor assigning and assignee Lender, as the case may beBanks.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender the respective Letter of Credit Issuer shall not have any obligation relative to the other Lenders L/C Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender any Letter of Credit Issuer under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is if taken or omitted to be taken with in the absence of gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)jurisdiction, shall not create for such Letter of Credit Issuer any resulting liability.
(c) In the event that any Issuing Lender Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender Letter of Credit Issuer pursuant to Section 3.05(a2.03(a), such Issuing Lender Letter of Credit Issuer shall promptly notify the Administrative Agent, which and the Agent shall promptly notify each L/C Participant of such failure, and each such L/C Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender Letter of Credit Issuer, the amount of such L/C Participant’s 's RL Percentage of such unreimbursed payment in U.S. Dollars and in same day funds; provided, however, that no L/C Participant shall be obligated to pay to the Agent its RL Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence as determined by a court of competent jurisdiction on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies, prior to 11:00 a.m. on notifies any Business Day, any L/C Participant required to fund a payment under a Letter of CreditCredit prior to 11:00 A.M. (New York time) on any Business Day, such L/C Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender in Dollars Letter of Credit Issuer such L/C Participant’s 's RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such L/C Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing LenderLetter of Credit Issuer, such L/C Participant agrees to pay to the Agent for the account of such Issuing LenderLetter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Agent for the account of such Issuing Lender Letter of Credit Issuer at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafterrate. The failure of any L/C Participant to make available to an Issuing Lender the Agent for the account of the respective Letter of Credit Issuer its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender it shall not relieve any other L/C Participant of its obligation hereunder to make available to the Agent for the account of such Issuing Lender Letter of Credit Issuer its RL Percentage of any payment under any such Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Agent for the account of such Issuing Lender Letter of Credit Issuer such other L/C Participant’s 's RL Percentage of any such payment.
(d) Whenever an Issuing Lender any Letter of Credit Issuer receives a payment of a reimbursement obligation as to which it the Agent has received for the account of such Letter of Credit Issuer any payments from the L/C Participants pursuant to clause (c) above, such Issuing Lender Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such applicable L/C Participant which has paid its RL Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to such L/C Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) 's RL Percentage of the principal amount of such reimbursement obligation thereof and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants each respective L/C Participant to make payments to the Agent for the account of each Issuing Lender respective Letter of Credit Issuer with respect to Letters of Credit issued by it which such L/C Participant has a participation in shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoffset-off, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any ParticipantLetter of Credit Issuer, any Bank, any L/C Participant or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein (including the Transaction) or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Labtec Inc /Ma)
Letter of Credit Participations. (a) Immediately upon the issuance by an any Issuing Lender Bank of any Letter of Credit, such Issuing Lender Bank shall be deemed to have sold and transferred to (i) in the case of a U.S. Letter of Credit, each RL LenderBank, and (ii) in the case of a U.K. Letter of Credit, each Bank with a U.K. Sub-Commitment (each such RL Lender (Bank with respect to any Letter of Credit, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderBank, without recourse or warranty, an undivided interest and participation, in a percentage equal to (x) in the case of a U.S. Letter of Credit, such Participant's Dollar Percentage; PROVIDED that if any U.S. Letter of Credit is issued at a time when (or if such issuance would cause) the Aggregate Non-U.K. Exposure to exceed the Total Non-U.K. Sub-Commitment, then the various Banks shall participate in such U.S. Letter of Credit (or in the case of such an issuance which causes the Aggregate Non-U.K. Exposure to exceed the Total Non-U.K. Sub-Commitment, the portion thereof which causes the Total Non-U.K. Sub-Commitment to be so exceeded) in accordance with the U.K. Percentages of the various Banks; PROVIDED FURTHER, that at such time or times as the Aggregate Non-U.K. Exposure is less than the Total Non-U.K. Sub-Commitment, and so long as no Default or Event of Default is then in existence, the percentage participations of the Banks in any U.S. Letter of Credit issued as described in the immediately preceding proviso shall be readjusted so that, with respect to each outstanding U.S. Letter of Credit, the Banks shall, to the maximum extent otherwise provided in this Section 2.04(a), subject to continued compliance with the immediately preceding proviso, participate in each U.S. Letter of Credit in accordance with their respective Dollar Percentages (in cases where the adjustment pursuant to this proviso will not be sufficient to allow all U.S. Letters of Credit to be participated in full by the Banks in accordance with their Dollar Percentages, with the Administrative Agent to designate from time to time the various outstanding U.S. Letters of Credit where the adjustments pursuant to this proviso shall apply and the amounts thereof, which records shall be conclusive absent manifest error) and (y) in the case of each U.K. Letter of Credit, such Participant’s RL 's U.K. Percentage, in such Letter of Credit, each substitute letter of credit, each drawing or payment made thereunder and the obligations of the Borrower respective Account Party under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto; PROVIDED HOWEVER, that notwithstanding anything to the contrary contained above, upon the occurrence of a Sharing Event, the participations described above shall be automatically adjusted so that each Bank shall have a participation in all then outstanding Letters of Credit, and related obligations as described above, in a percentage equal to its RL Percentage (which adjustments shall occur concurrently with the adjustments described in Section 1.15). Upon any change in the Revolving Loan Commitments or RL the respective Percentages of the Lenders Banks pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 1.13 or 13.04(c)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee LenderBank or of all Banks, as the case may be. With respect to each Letter of Credit from time to time outstanding, the percentage participations therein of the various Banks calculated as provided above in this Section 2.04(a) (including pursuant to the proviso in the second preceding sentence) are herein called the "L/C Participation Percentages" of the various Banks in such Letters of Credit.
(b) In determining whether to pay under any Letter of Credit, no such Issuing Lender Bank shall have any no obligation relative to the other Lenders Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender Bank under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Lender Bank any resulting liability to the Borrower, any other Credit Party, any Lender Account Party or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)Bank.
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the Borrower respective Account Party shall not have reimbursed such amount in full to such Issuing Lender Bank pursuant to Section 3.05(a2.05(a), such Issuing Lender Bank shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender Bank the amount of such Participant’s RL 's L/C Participation Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in Dollars (in the case of a U.S. Letter of Credit or, upon a Sharing Event, any Letter of Credit) or Pounds Sterling (in the case of a U.K. Letter of Credit at any time prior to a Sharing Event) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. A.M. (New York time or, in the case of U.K. Letters of Credit, London time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent at the Payment Office of the Administrative Agent for the account of the respective Issuing Lender Bank, in Dollars (in the case of a U.S. Letter of Credit or, after a Sharing Event, any Letter of Credit) or Pounds Sterling (in the case of a U.K. Letter of Credit at any time prior to a Sharing Event), such Participant’s RL 's L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL L/C Participation Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing LenderBank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing LenderBank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Issuing Lender Bank at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafterRate. The failure of any Participant to make available to an the Administrative Agent for the account of the respective Issuing Lender Bank its RL relevant L/C Participation Percentage of any payment under any Letter of Credit issued by such Issuing Lender it shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender Bank its RL relevant L/C Participation Percentage of any payment under any such Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Issuing Lender Bank such other Participant’s RL 's relevant L/C Participation Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which it the Administrative Agent has received for the account of such Issuing Bank any payments from the Participants pursuant to clause (c) above, such Issuing Lender Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each such Participant which has paid its RL relevant L/C Participation Percentage thereof, in Dollars (in the case of a U.S. Letter of Credit or, after a Sharing Event, any Letter of Credit) or Pounds Sterling (in the case of a U.K. Letter of Credit at any time prior to a Sharing Event) and in same day funds, an amount equal to such Participant’s 's share (based upon on the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon Each Issuing Bank shall, promptly after the request issuance of, or amendment to, a Standby Letter of any ParticipantCredit, give the Administrative Agent, each Participant and the respective Account Party written notice of such issuance or amendment, as the case may be, and such notice shall be accompanied by a copy of the issued Standby Letter of Credit or amendment, as the case may be.
(f) Each Issuing Bank (other than BTCo) shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by facsimile transmission, the Administrative Agent shall furnish aggregate daily Stated Amount available to such Participant copies of any Letter be drawn under the outstanding Trade Letters of Credit issued by any such Issuing Lender and Bank for the previous week. The Administrative Agent shall, within 10 days after the last Business Day of each calendar month, deliver to each Participant a report setting forth for such other documentation as may reasonably preceding calendar month the aggregate daily Stated Amount available to be requested by drawn under all outstanding Trade Letters of Credit during such Participantcalendar month.
(fg) The obligations of the Participants to make payments to each the Administrative Agent for the account of the respective Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower any Credit Party or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Bank, any Issuing Bank, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower any Credit Party or any Subsidiary of the Borrower its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; PROVIDED, that the Participants shall not be obligated to reimburse such Issuing Bank for any wrongful payment made by such Issuing Bank under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Bank. Any action taken or omitted to be taken by any Issuing Bank under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct shall not create for such Issuing Bank any resulting liability to the Participant.
Appears in 1 contract
Samples: Credit Agreement (Big Flower Press Holdings Inc /Pred/)
Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each RL Lender, and each such RL Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 4.02(b) or 13.04(c13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith negligence or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed payment in Dollars and in same day fundsfunds without any offset, abatement, withholding or deduction whatsoever. 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 at the Payment Office for the account of the respective Issuing Lender in Dollars such Participant’s RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at at, the overnight Federal Funds Rate greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation for the first three days and at the interest rate otherwise applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit CreditLoan Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit CreditLoan Documents; or
(v) the occurrence of any Default or Event of Default.;
(vi) any amendment or extension of any Letter of Credit; or
(vii) the occurrence of the Revolving Loan Maturity Date or the reduction or termination of the Revolving Loan Commitments.
Appears in 1 contract
Letter of Credit Participations. (a) Immediately upon the issuance by an the respective Issuing Lender Bank of any Letter of Credit, such Issuing Lender Bank shall be deemed to have sold and transferred to each RL LenderBank with a Revolving Loan Commitment, and other than such Issuing Bank (each such RL Lender (Bank, in its capacity under this Section 3.042.04, a “"Participant”) "), and each such Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing LenderBank, without recourse or warranty, an undivided interest and participationparticipation in, to the extent of such Participant’s 's RL Percentage, Percentage in such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower Revolving Loan Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining theretothereto (although Letter of Credit Fees shall be paid directly to the Administrative Agent for the ratable account of the Participants as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees). Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders Banks pursuant to Section 2.13, 2.14, 2.15, 2.16, 2.17 1.13 or 13.04(c)13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating theretoDrawings, there shall be an automatic adjustment to the participations partici- pations pursuant to this Section 3.04 2.04 to reflect the new RL Percentages of the assignor and assignee LenderBank, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no the respective Issuing Lender Bank shall have any no obligation relative to the other Lenders Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an any Issuing Lender Bank under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such Issuing Lender Bank any resulting liability to the either Revolving Loan Borrower, any other Credit Party, any Lender Bank or any other Person unless such action is taken or omitted to be taken with gross negligence, bad faith or willful misconduct or material breach of this Agreement on the part of such Issuing Lender or any of such Issuing Lenders’ or its Affiliates’ employees, directors, officers or agents (in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision)Person.
(c) In the event that any Issuing Lender Bank makes any payment under any Letter of Credit issued by it and the respective Revolving Loan Borrower shall not have reimbursed such amount in full to such Issuing Lender Bank pursuant to Section 3.05(a2.05(a), such Issuing Lender Bank shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent at the Payment Office for the account of such Issuing Lender Bank the amount of such Participant’s 's RL Percentage of such unreimbursed payment (x) in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 a.m. 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 respective such Issuing Lender Bank, in Dollars Dollars, such Participant’s 's RL Percentage of the amount of such payment (or, in the case of payments made in Pounds Sterling, the Dollar Equivalent thereof) on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the Administrative Agent at the Payment Office for the account of the respective such Issuing LenderBank, such Participant agrees to pay to such Issuing LenderBank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender Bank at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Dollar Revolving Loans that are maintained as Base Rate Loans hereunder for each day thereafter. The failure of any Participant to make available to an such Issuing Lender Bank its RL Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender Bank its RL Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender Bank such other Participant’s 's RL Percentage of any such payment.
(d) Whenever an any Issuing Lender Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent Bank shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant’s 's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, the Administrative Agent each Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by any Issuing Lender it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the respective Revolving Loan Borrower or any of its Subsidiaries or Affiliates may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein and therein or any unrelated transactions (including any underlying transaction between the respective Revolving Loan Borrower or any Subsidiary or Affiliate of the respective Revolving Loan Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
