Letter of Credit Participations. (i) Immediately upon the issuance by any Facing Agent of any Letter of Credit, such Facing Agent shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent (each such Lender, in its capacity under this Section 2.10(e), a “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing Agent, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata Share, in such Letter of Credit, each Drawing made thereunder and the obligations of Borrowers under this Agreement with respect thereto (although Letter of Credit fees shall be payable directly to Administrative Agent for the account of the LC Participant as provided in Section 2.10(g) and the LC Participants shall have no right to receive any portion of the facing fees), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(e) to reflect the new Multicurrency Revolver Pro Rata Share of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may be. (ii) In determining whether to pay under any Letter of Credit, such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent any resulting liability to any Borrower or any Lender.
Appears in 2 contracts
Samples: Credit Agreement (Ball Corp), Credit Agreement (Ball Corp)
Letter of Credit Participations. (ia) Immediately upon the issuance issuance, increase or externsion by any Facing Agent Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent Lender (each such LenderLender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)3.04, a “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, in a percentage equal to the extent of such Multicurrency Revolving LenderParticipant’s Multicurrency Revolver Pro Rata Share, RL Percentage in such Letter of Credit, each Drawing drawing or payment made thereunder (each, a “Drawing”) and the obligations of Borrowers the Borrower under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Lenders as provided in Section 2.10(g4.01(c) and the LC Participants shall have no right to receive any portion of the facing fees), any Facing Fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Loan Commitments and, as a result thereof the RL Percentages, of the Multicurrency Revolving LendersLenders pursuant to Sections 2.13 or 13.04, it is hereby agreed that, that with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 3.04 to reflect the new Multicurrency Revolver Pro Rata Share RL Percentages of the assignor and assignee Lender or Lenders. With respect to each Letter of all Credit from time to time outstanding, the percentage participations therein of the various Lenders with Multicurrency Revolving Commitmentscalculated as provided above in this Section 3.04(a) are herein called the “L/C Participation Percentages” of the various Lenders in such Letters of Credit. All calculations of the L/C Participation Percentages shall be made from time to time by the Administrative Agent, as the case may bewhich calculations shall be conclusive absent manifest error.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent no Issuing Lender shall have no any obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent an Issuing Lender under or in connection with any Letter of Credit issued by it if 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 in the absence of a bad faith breach of its material obligations hereunder, to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and nonappealable decision).
(c) In the event that an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York City time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender such Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its L/C Participation Percentage of the amount of such payment available to the 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 relevant L/C Participation 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 relevant L/C Participation 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 relevant L/C Participation Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever (except in the case of an Issuing Lender’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered by a court decision)) and shall be made in accordance with the terms and conditions of competent jurisdictionthis Agreement under all circumstances, shall not create for such Facing Agent including, without limitation, any resulting liability to 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 Lenderof its Subsidiary Guarantors may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary Guarantor 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: Revolving Credit Agreement, Revolving Credit Agreement (OCI Partners LP)
Letter of Credit Participations. (i) Immediately upon the issuance by any Facing Agent of any Letter of CreditEach Fronting Lender irrevocably grants, such Facing Agent shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent (each such Lenderand, in its capacity under this Section 2.10(e)order to induce each Fronting Lender to issue any Fronted Letters of Credit hereunder, a “LC Participant”), each Lender irrevocably accepts and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received hereby purchases from such Facing AgentFronting Lender on the terms and conditions hereinafter stated, without recourse or warrantyfor its own account and risk, an undivided interest and participation, (equal to the extent Lender's Proportion of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata Share, ) in such Letter of Credit, Fronting Lender's obligations and rights under each Drawing made thereunder and the obligations of Borrowers under this Agreement with respect thereto (although Fronted Letter of Credit fees shall be payable directly issued by such Fronting Lender pursuant to Administrative this Section 3.9 and the amount of each draft paid by such Fronting Lender thereunder. Each Lender unconditionally and irrevocably agrees with each Fronting Lender that, on or before the close of business of such Fronting Lender on each day on which a draft is paid under a Fronted Letter of Credit for which such Fronting Lender is not reimbursed in full by the Borrower in accordance with the terms of this Agreement, including, without limitation, pursuant to Section 3.9(i) (a "Participation Date"), such Lender will pay to the Agent for the account of such Fronting Lender at the LC Participant Agent's Branch of Account the Lender's Proportion of such Lender of any such unpaid amount. Each Fronting Lender shall notify the Agent who shall notify each Lender of the occurrence of a Participation Date and the amount payable by such Lender to the Agent based on the Lender's Proportion of such Lender. Any such notice may be oral if promptly confirmed in writing (including telecopy or electronic mail). If any Lender fails to make any such payment on the day on which such Lender receives notice as provided in above, then interest shall accrue on such Lender's obligation to make such payment during the period from such day to the day such Lender makes such payment (or, if earlier, the date on which the Borrower reimburses the applicable Fronting Lender as required pursuant to Section 2.10(g) and the LC Participants shall have no right to receive any portion of the facing fees3.9(i)), at a rate determined by the Agent (such rate to be conclusive and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(e) to reflect the new Multicurrency Revolver Pro Rata Share of the assignor and assignee binding on such Lender or of all Lenders with Multicurrency Revolving Commitments, the Borrower as the case may be.
(ii) In determining whether to pay under any Letter of Credit, such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face in accordance with the requirements Agent's usual banking practice for similar advances to financial institutions of like standing to such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent any resulting liability to any Borrower or any Lender.
Appears in 2 contracts
Samples: Credit Agreement (PENGROWTH ENERGY Corp), Credit Agreement (PENGROWTH ENERGY Corp)
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent the respective Issuing Bank of any Letter of Credit, such Facing Agent Issuing Bank shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, Lender (other than such Facing Agent Issuing Bank) (each such LenderLender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)2.20.3, a “LC an "L/C Participant”"), and each such LC L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Bank, without recourse or warranty, an undivided interest and participation, in a percentage equal to the extent of such Multicurrency Revolving Lender’s Multicurrency Revolver L/C Participant's Pro Rata Share, in such Letter of Credit, each Drawing drawing or payment made thereunder and the obligations of Borrowers Borrower under this Agreement with respect thereto, and any guaranty pertaining thereto (although Letter of Credit fees Fees shall be payable paid directly to the Administrative Agent for the ratable account of the LC Participant Lenders based on their Pro Rata Shares as provided in Section 2.10(g) 2.20.6 and the LC L/C Participants shall have no right to receive any portion of the facing feesany Facing Fees), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Loan Commitments or Pro Rata Shares of the Multicurrency Revolving LendersLenders pursuant to this Agreement, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of CreditDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2.20.3 to reflect the new Multicurrency Revolver Pro Rata Share of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may beShares.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Bank shall have no obligation relative to the LC L/C Participants or any other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Bank under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct (as finally determined by a final and non-appealable judgment rendered by a court of competent jurisdiction), shall not create for such Facing Agent Issuing Bank any resulting liability to any Borrower Borrower, Parent Guarantor or any Lenderof its Subsidiaries, any Subsidiary Guarantor, any Lender or any other Person.
(c) If any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.20.4(a), such Issuing Bank shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each L/C Participant of such failure, and each L/C Participant shall promptly and unconditionally pay to the Administrative Agent for the benefit of such Issuing Bank the amount of such L/C Participant's Pro Rata Share 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. (New York time) on any Business Day, any L/C Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent for the benefit of such Issuing Bank, in U.S. dollars, such L/C Participant's Pro Rata Share of the amount of such payment on such Business Day in same day funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent for the benefit of such Issuing Bank its Pro Rata Share of such unreimbursed amount for any wrongful payment made by such Issuing Bank under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Bank (as finally determined by a court of competent jurisdiction). If and to the extent such L/C Participant shall not have so made its Pro Rata Share of the amount of such payment available to the Administrative Agent for the benefit of such Issuing Bank, such L/C Participant agrees to pay to the Administrative Agent for the benefit of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the benefit of such Issuing Bank at the overnight Federal Funds Effective Rate for the first three days and at the interest rate applicable to Revolving Loans maintained as Floating Rate Loans hereunder for each day thereafter. The failure of any L/C Participant to make available to such Issuing Bank its Pro Rata Share of any payment under any Letter of Credit shall not relieve any other L/C Participant of its obligation hereunder to make available to such Issuing Bank its Pro Rata Share of any unreimbursed payment with respect to a 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 benefit of such Issuing Bank such other L/C Participant's Pro Rata Share of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from the L/C Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the benefit of each L/C Participant which has paid its Pro Rata Share 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 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. The payment required to be made by the respective Issuing Bank to the Administrative Agent pursuant to the preceding sentence shall be made on the day the respective payment of a reimbursement is received by such Issuing Bank (if payment was actually received by such Issuing Bank prior to 12:00 Noon (local time in the city in which such payments are to be made)).
(e) The obligations of the L/C Participants to make payments to the Administrative Agent for the benefit of each Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever (except as otherwise provided in the proviso to the second sentence of Section 2.20.3(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 Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which Borrower, Parent Guarantor 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 Issuing Bank, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Borrower, Parent Guarantor or any Subsidiary or Affiliate of such Person 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 guaranty for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default.
Appears in 1 contract
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent a Letter of Credit Issuer of any Letter of Credit (and on the Closing Date with respect to any Existing Letter of Credit), such Facing Agent Letter of Credit Issuer shall be deemed to have sold and transferred to each Multicurrency Lender with a General Revolving Lender, other than such Facing Agent (each such Lender, in its capacity under this Section 2.10(e), a “LC Participant”)Commitment, and each such LC Participant Lender (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Lender's General Revolving Lender’s Multicurrency Revolver Pro Rata ShareFacility Percentage, in such Letter of Credit, each Drawing substitute letter of credit, each drawing made thereunder and thereunder, the obligations of Borrowers the Borrower under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Lenders as provided in Section 2.10(gsection 4.1(b) and the LC Participants shall have no right to receive any portion of any fees of the facing feesnature contemplated by section 4.1(c)), the obligations of any Subsidiary of the Borrower under any Letter of Credit Documents pertaining thereto, and any security therefor for, or guaranty pertaining theretoto, any of the foregoing. Upon any change in the Multicurrency General Revolving Commitments of the Multicurrency Revolving LendersLenders pursuant to section 12.4(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of CreditDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) section 3.4 to reflect the new Multicurrency Revolver Pro Rata Share General Revolving Facility Percentages of the assignor assigning and assignee Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may beLender.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent a Letter of Credit Issuer shall not have no any obligation relative to the LC Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent 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 a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdictionmisconduct, shall not create for such Facing Agent Letter of Credit Issuer any resulting liability liability.
(c) In the event that a Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed (or caused any applicable Subsidiary to reimburse) such amount in full to such Letter of Credit Issuer pursuant to section 3.3(a), such Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Letter of Credit Issuer, the amount of such Participant's General Revolving Facility Percentage of such payment in U.S. Dollars and in same day funds, provided, however, that no Participant shall be obligated to pay to the Administrative Agent its General Revolving Facility Percentage of such unreimbursed amount for any Borrower wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies any LenderParticipant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such Participant shall make available to the Administrative Agent for the account of the relevant Letter of Credit Issuer such Participant's General Revolving Facility Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its General Revolving Facility Percentage of the amount of such payment available to the Administrative Agent for the account of the relevant Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Letter of Credit Issuer at the Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of the relevant Letter of Credit Issuer its General Revolving Facility Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Letter of Credit Issuer its General Revolving Facility Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Letter of Credit Issuer such other Participant's General Revolving Facility Percentage of any such payment.
Appears in 1 contract
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of Credit, but subject to Section 2C.03 to the extent applicable in the case of Non-Dollar Denominated Letters of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent CL Lender (each such LenderLender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)2A.04, a “LC L/C Participant”), and each such LC L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participationparticipation (each an “L/C Participation”), in a percentage equal to the extent of such Multicurrency Revolving LenderL/C Participant’s Multicurrency Revolver Pro Rata Share, CL Percentage in such Letter of Credit, and each Drawing made thereunder and the obligations of Borrowers the respective Account Party under this Agreement with respect thereto (although Letter of Credit fees CL Facility Fees shall be payable directly to the Administrative Agent for the account of the LC Participant CL Lenders as provided in Section 2.10(g3.01(a) and the LC L/C Participants shall have no right to receive any portion of the facing fees), any Facing Fees or any administration fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Credit-Linked Commitments and, as a result thereof, the CL Percentages of the Multicurrency Revolving LendersCL Lenders pursuant to Section 1.13, or 13.04, it is hereby agreed that, that with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2A.04 to reflect the new Multicurrency Revolver Pro Rata Share CL Percentages of the assignor CL Lenders. With respect to each Letter of Credit from time to time outstanding, all calculations of the percentage participations therein of the various CL Lenders shall be made from time to time by the Administrative Agent, which calculations shall be conclusive absent manifest error. Furthermore, upon the occurrence of a Sharing Event and assignee Lender or as more fully set forth in Section 1.14, additional sub-participations may be required to be granted by the various CL Lenders in their participations in outstanding Letters of all Lenders with Multicurrency Revolving CommitmentsCredit, as in each case in accordance with, and subject to the case may beprovisions of, Section 1.14.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Lender shall have no obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered by a court of competent jurisdictiondecision), shall not create for such Facing Agent Issuing Lender any resulting liability to any Borrower Account Party or any Lender.
(c) In the event that any Issuing Lender makes any payment or disbursement under any Letter of Credit issued by it and the respective Account Party shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2A.05(a) by the date required by said Section 2A.05(a) for such reimbursement, 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 (including in its capacity as an L/C Participant) 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 Unpaid Drawing is in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof, as determined by the Administrative Agent on the date on which such payment or disbursement was made under the respective 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, in which case the Total Credit-Linked Commitment shall be reduced by the amount so applied (with a corresponding reduction in the Credit-Linked Commitment of each CL Lender equal to such CL Lender’s CL Percentage of such aggregate amount so applied); provided that any portion of the Unpaid Drawings with respect to a Non-Dollar Denominated Letter of Credit, which, because of currency fluctuations, represents amounts in excess of the Total Credit-Linked Deposits (as more fully described in Section 2C.03), shall not be reimbursed from Credit-Linked Deposits but shall instead be immediately repaid by the respective Account Party. Furthermore, if any Specified Default or any Event of Default then exists, the respective Issuing Lender may, with respect to any payment or disbursement made by it under any Letter of Credit, request the Deposit Bank, in which case each CL Lender hereby irrevocably authorizes the Deposit Bank (and the Deposit Bank hereby agrees), to reimburse the Issuing Lender, solely from such CL Lender’s CL Percentage of the Credit-Linked Deposits on deposit in the Credit-Linked Deposit Account with the Deposit Bank, for any Drawing under such Letter of Credit as provided in the immediately preceding sentence (notwithstanding the date of reimbursement of any such Drawings by the date required by Section 2A.05(a)), in which case the Total Credit-Linked Commitment shall be reduced by the amount so applied as otherwise provided in the immediately preceding sentence, and any amounts actually received pursuant to Section 2A.05(a) shall be applied to reimburse L/C Participants as provided in following Section 2A.04(d).
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the L/C Participants (or from the Deposit Bank on their behalf) pursuant to Section 2A.04(c) above, such Issuing Lender shall, after paying itself any amounts owing to it as described in Section 2C.03 in the case of payments received with respect to Non- Dollar Denominated Letters of Credit, pay (in same day funds in Dollars) to the Administrative Agent (and the Administrative Agent shall promptly pay (in same day funds in Dollars) to each L/C Participant which has paid its relevant CL Percentage thereof) an amount equal to such L/C Participant’s share (based on the proportionate aggregate amount funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the principal amount of such 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 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 L/C Participant shall so request, the Administrative Agent shall furnish said L/C Participant with a copy of such Standby Letter of Credit, such amendment or such modification, as the case may be.
(f) Each Issuing Lender (other than DBAG) shall deliver to the Administrative Agent and the Deposit Bank, 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 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 Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which 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), any Agent, any Lender, any Issuing Lender, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Credit Party or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided that the L/C Participants shall not be obligated to reimburse such Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of deliberate acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). Any action taken or omitted to be taken by any Issuing Lender under or in connection with any Letter of Credit shall not create for such Issuing Lender any resulting liability to the L/C Participants or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Letter of Credit Participations. (ia) Immediately upon the issuance issuance, increase or extension by any Facing Agent Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent Lender (each such LenderRevolving Lender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)3.04, a “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, in a percentage equal to the extent of such Multicurrency Revolving LenderParticipant’s Multicurrency Revolver Pro Rata Share, RL Percentage in such Letter of Credit, each Drawing drawing or payment made thereunder (each, a “Drawing”) and the obligations of Borrowers the Borrower under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Revolving Lenders as provided in Section 2.10(g4.01(d) and the LC Participants shall have no right to receive any portion of the facing fees), any Facing Fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Loan Commitments and, as a result thereof the RL Percentages, of the Multicurrency Revolving LendersLenders pursuant to Sections 2.13 or 13.04, it is hereby agreed that, that with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 3.04 to reflect the new Multicurrency Revolver Pro Rata Share RL Percentages of the assignor and assignee Lender or Revolving Lenders. With respect to each Letter of all Credit from time to time outstanding, the percentage participations therein of the various Lenders with Multicurrency calculated as provided above in this Section 3.04(a) are herein called the “L/C Participation Percentages” of the various Revolving CommitmentsLenders in such Letters of Credit. All calculations of the L/C Participation Percentages shall be made from time to time by the Administrative Agent, as the case may bewhich calculations shall be conclusive absent manifest error.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent no Issuing Lender shall have no any obligation relative to the LC Participants other Revolving Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent an Issuing Lender under or in connection with any Letter of Credit issued by it if shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Revolving Lender or any other Person unless such action is taken or omitted in the absence of a bad faith breach of its material obligations hereunder, to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and nonappealable decision).
(c) In the event that an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York City time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender such Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its L/C Participation Percentage of the amount of such payment available to the 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 relevant L/C Participation 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 relevant L/C Participation 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 relevant L/C Participation Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever (except in the case of an Issuing Xxxxxx’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered by a court decision)) and shall be made in accordance with the terms and conditions of competent jurisdictionthis Agreement under all circumstances, shall not create for such Facing Agent including, without limitation, any resulting liability to 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 Lenderof the Guarantors may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any Guarantor 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 (OCI Partners LP)
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent the respective Issuing Bank of any Letter of Credit, such Facing Agent Issuing Bank shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, RL Lender (other than such Facing Agent Issuing Bank) (each such LenderLender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)2.04, a “LC "Participant”"), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Bank, without recourse or warranty, an undivided interest and participation, in a percentage equal to the extent of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata ShareParticipant's Dollar Percentage, in such Letter of Credit, each Drawing drawing or payment made thereunder and the obligations of Borrowers the respective Dollar Revolving Loan Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit fees Fees shall be payable paid directly to Administrative the Paying Agent for the ratable account of the LC Participant RL Lenders based on their Dollar Percentages as provided in Section 2.10(g3.01(c) and the LC Participants shall have no right to receive any portion of any Facing Fees); provided that, upon the facing fees)occurrence of a Sharing Event, the participations described above shall be automatically adjusted so that each RL Lender shall have a participation in all then outstanding Letters of Credit, and any security therefor or guaranty pertaining theretorelated obligations as described above, in a percentage equal to its RL Percentage (which adjustments shall occur concurrently with the adjustments described in Section 1.17). Upon any change in the Multicurrency Revolving Loan Commitments or Dollar Percentages of the Multicurrency Revolving LendersRL Lenders pursuant to this Agreement (or in the circumstances provided in the proviso to the immediately preceding sentence, the RL Percentages of the RL Lenders pursuant to this Agreement), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of CreditDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2.04 to reflect the new Multicurrency Revolver Pro Rata Share Dollar Percentages or, in the circumstances described in the proviso to the immediately preceding sentence, the RL Percentages of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may bevarious RL Lenders.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Bank shall have no obligation relative to the LC Participants or any other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Bank under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct (as finally determined by a final and non-appealable judgment rendered by a court of competent jurisdiction), shall not create for such Facing Agent Issuing Bank any resulting liability to the respective Dollar Revolving Loan Borrower, any Borrower other Credit Party, any Lender or any Lenderother Person.
(c) If any Issuing Bank makes any payment under any Letter of Credit and the respective Dollar Revolving Loan Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify the Paying Agent, and the Paying Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Paying Agent for the benefit of such Issuing Bank the amount of such Participant's Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of such unreimbursed payment in Dollars and in same day funds. If the Paying Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Paying Agent for the benefit of such Issuing Bank, in Dollars, such Participant's Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of the amount of such payment on such Business Day in same day funds; provided, however, that no Participant shall be obligated to pay to the Paying Agent for the benefit of such Issuing Bank its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of such unreimbursed amount for any wrongful payment made by such Issuing Bank under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Bank (as finally determined by a court of competent jurisdiction). If and to the extent such Participant shall not have so made its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of the amount of such payment available to the Paying Agent for the benefit of such Issuing Bank, such Participant agrees to pay to the Paying Agent for the benefit of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Paying Agent for the benefit of such Issuing Bank at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Dollar Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter. The failure of any Participant to make available to such Issuing Bank its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of any unreimbursed payment with respect to a Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Paying Agent for the benefit of such Issuing Bank such other Participant's Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Paying Agent for the benefit of each Participant which has paid its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) thereof, in Dollars and in same day funds, an amount equal to such Participant's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the Paying Agent for the benefit of each Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever (except as otherwise provided in the proviso to the second sentence of Section 2.04(c)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which any Credit Party or any of its Subsidiaries or Affiliates may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), any Agent, any Issuing Bank, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Credit Party or any Subsidiary or Affiliate of any Credit Party and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security 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. (i) Immediately upon the ------------------------------- issuance by any Facing Agent the Letter of Credit Issuer of any US Letter of Credit, such Facing Agent the Letter of Credit Issuer shall be deemed to have sold and transferred to each Multicurrency Revolving LenderDRL Bank, other than and each such Facing Agent DRL Bank (each such LenderDRL Bank, in its capacity under this Section 2.10(e)2.04, a “LC "DRL Participant”), and each such LC Participant ") shall be deemed irrevocably and unconditionally to have purchased and received from such Facing Agentthe Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata ShareDRL Bank's DRL Percentage, in such US Letter of Credit, each Drawing substitute letter of credit, each drawing made thereunder and the obligations of Borrowers the US Borrower under this Agreement with respect thereto (although US Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant DRL Banks as provided in Section 2.10(g3.01(b) and the LC DRL Participants shall have no right to receive any portion of the facing fees), any US Facing Fees) and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Dollar Revolving Loan Commitments or DRL Percentages of the Multicurrency Revolving LendersDRL Banks pursuant to Sections 1.13 and/or 12.04(b), it is hereby agreed that, with respect to all outstanding US Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2.04 to reflect the new Multicurrency Revolver Pro Rata Share DRL Percentages of the assignor assigning and assignee Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may beBank.
(ii) Immediately upon the issuance by the Letter of Credit Issuer of any Foreign Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold and transferred to each FRL Bank, and each such FRL Bank (each such FRL Bank, in its capacity under this Section 2.04, a "FRL Participant", and, together with the DRL Participants, collectively, the "Participants" and each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such FRL Bank's FRL Percentage, in such Foreign Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the respective Foreign Borrower under this Agreement with respect thereto (although Foreign Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the FRL Banks as provided in Section 3.01(b) and the FRL Participants shall have no right to receive any portion of any Foreign Facing Fees) and any security therefor or guaranty pertaining thereto. Upon any change in the Foreign Revolving Loan Commitments or FRL Percentages of the FRL Banks pursuant to Sections 1.13 and/or 12.04(b), it is hereby agreed that, with respect to all outstanding Foreign Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the new FRL Percentages of the assigning and assignee Bank.
(b) In determining whether to pay under any Letter of Credit, such Facing Agent the Letter of Credit Issuer shall not have no any obligation relative to the LC Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit 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 any Facing Agent the Letter of Credit Issuer under or in connection with any Letter of Credit issued by it Credit, if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdictionmisconduct, shall not create for such Facing Agent the Letter of Credit Issuer any resulting liability liability.
(c) In the event that the Letter of Credit Issuer makes any payment under any US Letter of Credit and the US Borrower shall not have reimbursed such amount in full to the Letter of Credit Issuer pursuant to Section 2.03(a), the Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each DRL Participant of such failure, and each DRL Participant shall promptly and unconditionally pay in Dollars (or, in the case of any unreimbursed payments made in an Alternate Currency, the Dollar Equivalent of such unreimbursed payments) to the Administrative Agent for the account of the Letter of Credit Issuer, the amount of such DRL Participant's DRL Percentage of such payment and in same day funds, provided that no DRL Participant shall be obligated to pay to the Administrative Agent its DRL Percentage of such unreimbursed amount for any wrongful payment made by the Letter of Credit Issuer under a US Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. In the event that the Letter of Credit Issuer makes any payment under any Foreign Letter of Credit and the respective Foreign Borrower shall not have reimbursed such amount in full to the Letter of Credit Issuer pursuant to Section 2.03(a), the Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each FRL Participant of such failure, and each FRL Participant shall promptly and unconditionally pay in the relevant Alternate Currency to the Administrative Agent for the account of the Letter of Credit Issuer, the amount of such FRL Participant's FRL Percentage of such payment and in same day funds, provided that no FRL Participant shall be obligated to pay to the Administrative Agent its FRL Percentage of such unreimbursed amount for any wrongful payment made by the Letter of Credit Issuer under a Foreign Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. If the Administrative Agent so notifies any Lender.Participant required to fund a payment under a Letter of Credit prior to
Appears in 1 contract
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of Credit, but subject to Section 2C.03 to the extent applicable in the case of Non-Dollar Denominated Letters of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent CL Lender (each such LenderLender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)2A.04, a “LC "L/C Participant”"), and each such LC L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participationparticipation (each an "L/C Participation"), in a percentage equal to the extent of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata Share, L/C Participant's CL Percentage in such Letter of Credit, and each Drawing made thereunder and the obligations of Borrowers the respective Account Party under this Agreement with respect thereto (although Letter of Credit fees CL Facility Fees shall be payable directly to the Administrative Agent for the account of the LC Participant CL Lenders as provided in Section 2.10(g3.01(a) and the LC L/C Participants shall have no right to receive any portion of the facing fees), any Facing Fees or any administration fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Credit-Linked Commitments and, as a result thereof, the CL Percentages of the Multicurrency Revolving LendersCL Lenders pursuant to Section 1.13, or 13.04, it is hereby agreed that, that with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2A.04 to reflect the new Multicurrency Revolver Pro Rata Share CL Percentages of the assignor CL Lenders. With respect to each Letter of Credit from time to time outstanding, all calculations of the percentage participations therein of the various CL Lenders shall be made from time to time by the Administrative Agent, which calculations shall be conclusive absent manifest error. Furthermore, upon the occurrence of a Sharing Event and assignee Lender or as more fully set forth in Section 1.14, additional sub-participations may be required to be granted by the various CL Lenders in their participations in outstanding Letters of all Lenders with Multicurrency Revolving CommitmentsCredit, as in each case in accordance with, and subject to the case may beprovisions of, Section 1.14.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Lender shall have no obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered by a court of competent jurisdictiondecision), shall not create for such Facing Agent Issuing Lender any resulting liability to any Borrower Account Party or any Lender.
(c) In the event that any Issuing Lender makes any payment or disbursement under any Letter of Credit issued by it and the respective Account Party shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2A.05(a) by the date required by said Section 2A.05(a) for such reimbursement, 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 (including in its capacity as an L/C Participant) 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 Unpaid Drawing is in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof, as determined by the Administrative Agent on the date on which such payment or disbursement was made under the respective 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, in which case the Total Credit-Linked Commitment shall be reduced by the amount so applied (with a corresponding reduction in the Credit-Linked Commitment of each CL Lender equal to such CL Lender's CL Percentage of such aggregate amount so applied); provided that any portion of the Unpaid Drawings with respect to a Non-Dollar Denominated Letter of Credit, which, because of currency fluctuations, represents amounts in excess of the Total Credit-Linked Deposits (as more fully described in Section 2C.03), shall not be reimbursed from Credit-Linked Deposits but shall instead be immediately repaid by the respective Account Party. Furthermore, if any Specified Default or any Event of Default then exists, the respective Issuing Lender may, with respect to any payment or disbursement made by it under any Letter of Credit, request the Deposit Bank, in which case each CL Lender hereby irrevocably authorizes the Deposit Bank (and the Deposit Bank hereby agrees), to reimburse the Issuing Lender, solely from such CL Lender's CL Percentage of the Credit-Linked Deposits on deposit in the Credit-Linked Deposit Account with the Deposit Bank, for any Drawing under such Letter of Credit as provided in the immediately preceding sentence (notwithstanding the date of reimbursement of any such Drawings by the date required by Section 2A.05(a)), in which case the Total Credit-Linked Commitment shall be reduced by the amount so applied as otherwise provided in the immediately preceding sentence, and any amounts actually received pursuant to Section 2A.05(a) shall be applied to reimburse L/C Participants as provided in following Section 2A.04(d).
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the L/C Participants (or from the Deposit Bank on their behalf) pursuant to Section 2A.04(c) above, such Issuing Lender shall, after paying itself any amounts owing to it as described in Section 2C.03 in the case of payments received with respect to Non-Dollar Denominated Letters of Credit, pay (in same day funds in Dollars) to the Administrative Agent (and the Administrative Agent shall promptly pay (in same day funds in Dollars) to each L/C Participant which has paid its relevant CL Percentage thereof) an amount equal to such L/C Participant's share (based on the proportionate aggregate amount funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the principal amount of such 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 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 L/C Participant shall so request, the Administrative Agent shall furnish said L/C Participant with a copy of such Standby Letter of Credit, such amendment or such modification, as the case may be.
(f) Each Issuing Lender (other than DBAG) shall deliver to the Administrative Agent and the Deposit Bank, 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 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 Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which 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), any Agent, any Lender, any Issuing Lender, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Credit Party or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided that the L/C Participants shall not be obligated to reimburse such Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of deliberate acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). Any action taken or omitted to be taken by any Issuing Lender under or in connection with any Letter of Credit shall not create for such Issuing Lender any resulting liability to the L/C Participants or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Appears in 1 contract
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent a Letter of Credit Issuer of any Letter of Credit (and on the Closing Date with respect to any Existing Letter of Credit), such Facing Agent Letter of Credit Issuer shall be deemed to have sold and transferred to each Multicurrency Lender with a Revolving Lender, other than such Facing Agent (each such Lender, in its capacity under this Section 2.10(e), a “LC Participant”)Commitment, and each such LC Participant Lender (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Lender's Revolving Lender’s Multicurrency Revolver Pro Rata ShareFacility Percentage, in such Letter of Credit, each Drawing substitute letter of credit, each drawing made thereunder and thereunder, the obligations of the Borrowers under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Lenders as provided in Section 2.10(gsection 4.1(b) and the LC Participants shall have no right to receive any portion of any fees of the facing feesnature contemplated by section 4.1(c)), the obligations of any Letter of Credit Obligor under any Letter of Credit Documents pertaining thereto, and any security therefor for, or guaranty pertaining theretoto, any of the foregoing. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving LendersLenders pursuant to section 13.4(c), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of CreditDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) section 3.4 to reflect the new Multicurrency Revolver Pro Rata Share Revolving Facility Percentages of the assignor assigning and assignee Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may beLender.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent a Letter of Credit Issuer shall not have no any obligation relative to the LC Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent 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 a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdictionmisconduct, shall not create for such Facing Agent Letter of Credit Issuer any resulting liability liability.
(c) In the event that a Letter of Credit Issuer makes any payment under any Letter of Credit and the applicable Borrower shall not have reimbursed (or caused any applicable Letter of Credit Obligor to reimburse) such amount in full to such Letter of Credit Issuer pursuant to section 3.3(a), such Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Letter of Credit Issuer, the amount of such Participant's Revolving Facility Percentage of such payment in Dollars (the Administrative Agent having determined in the case of any Borrower payment by a Letter of Credit Issuer made in Euros the equivalent thereof in Dollars) and in same day funds, provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Revolving Facility Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies any Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such Participant shall make available to the Administrative Agent for the account of the relevant Letter of Credit Issuer such Participant's Revolving Facility Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Revolving Facility Percentage of the amount of such payment available to the Administrative Agent for the account of the relevant Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Letter of Credit Issuer at the Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of the relevant Letter of Credit Issuer its Revolving Facility Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Letter of Credit Issuer its Revolving Facility Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Letter of Credit Issuer such other Participant's Revolving Facility Percentage of any such payment.
(d) Whenever a Letter of Credit Issuer receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from the Participants pursuant to section 3.4(c) above, such Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Facility Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant's Revolving Facility Percentage of the principal amount thereof and interest thereon accruing after the purchase of the respective participations, as and to the extent so received.
(e) The obligations of the Participants to make payments to the Administrative Agent for the account of each Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off defense or other right which the Borrower (or any other Letter of Credit Obligor) may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any person for whom any such transferee may be acting), the Administrative Agent, any Letter of Credit Issuer, any Lender, or other person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrowers (or any other Letter of Credit Obligor) and the beneficiary named in any such Letter of Credit), other than any claim which the Borrowers (or any other Letter of Credit Obligor which is the account party with respect to a Letter of Credit) may have against any applicable Letter of Credit Issuer for gross negligence or wilful misconduct of such Letter of Credit Issuer in making payment under any applicable Letter of Credit;
(iii) any draft, certificate or other document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents: or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified by the Borrowers, the Participants will reimburse and indemnify the Letter of Credit Issuer, in proportion to their respective Revolving Facility Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Letter of Credit Issuer in performing its respective duties in any way related to or arising out of its issuance of Letters of Credit, provided that no Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the Letter of Credit Issuer's gross negligence or willful misconduct.
Appears in 1 contract
Samples: Credit Agreement (Om Group Inc)
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent a Letter of Credit Issuer of any Letter of Credit (and on the Closing Date with respect to any Existing Letter of Credit), such Facing Agent Letter of Credit Issuer shall be deemed to have sold and transferred to each Multicurrency Lender with a Revolving Lender, other than such Facing Agent (each such Lender, in its capacity under this Section 2.10(e), a “LC Participant”)Commitment, and each such LC Participant Lender (each a "Participant") shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentLetter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Lender's Revolving Lender’s Multicurrency Revolver Pro Rata ShareFacility Percentage, in such Letter of Credit, each Drawing substitute letter of credit, each drawing made thereunder and thereunder, the obligations of the Borrowers under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Lenders as provided in Section 2.10(gsection 4.1(b) and the LC Participants shall have no right to receive any portion of any fees of the facing feesnature contemplated by section 4.1(c)), the obligations of any Letter of Credit Obligor under any Letter of Credit Documents pertaining thereto, and any security therefor for, or guaranty pertaining theretoto, any of the foregoing. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving LendersLenders pursuant to section 13.4(c), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of CreditDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) section 3.4 to reflect the new Multicurrency Revolver Pro Rata Share Revolving Facility Percentages of the assignor assigning and assignee Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may beLender.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent a Letter of Credit Issuer shall not have no any obligation relative to the LC Participants other than to confirm determine that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent 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 a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdictionmisconduct, shall not create for such Facing Agent Letter of Credit Issuer any resulting liability liability.
(c) In the event that a Letter of Credit Issuer makes any payment under any Letter of Credit and a Borrower shall not have reimbursed (or caused any applicable Letter of Credit Obligor to reimburse) such amount in full to such Letter of Credit Issuer pursuant to section 3.3(a), such Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Letter of Credit Issuer, the amount of such Participant's Revolving Facility Percentage of such payment in U.S. Dollars (the Administrative Agent having determined in the case of any payment by a Letter of Credit Issuer made in an Alternative Currency the equivalent thereof in Dollars) and in same day funds, provided, however, that no Participant shall be obligated to pay to the Administrative Agent its Revolving Facility Percentage of such unreimbursed amount for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer. If the Administrative Agent so notifies any Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such Participant shall make available to the Administrative Agent for the account of the relevant Letter of Credit Issuer such Participant's Revolving Facility Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Revolving Facility Percentage of the amount of such payment available to the Administrative Agent for the account of the relevant Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of such Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Letter of Credit Issuer at the Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of the relevant Letter of Credit Issuer its Revolving Facility Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Letter of Credit Issuer its Revolving Facility Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of such Letter of Credit Issuer such other Participant's Revolving Facility Percentage of any such payment.
(d) Whenever a Letter of Credit Issuer receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Letter of Credit Issuer any payments from the Participants pursuant to section 3.4(c) above, such Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Revolving Facility Percentage thereof, in U.S. dollars and in same day funds, an amount equal to such Participant's Revolving Facility Percentage of the principal amount thereof and interest thereon accruing after the purchase of the respective participations, as and to the extent so received.
(e) The obligations of the Participants to make payments to the Administrative Agent for the account of each Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off defense or other right which the Borrower (or any other Letter of Credit Obligor) may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any person for whom any such transferee may be acting), the Administrative Agent, any Letter of Credit Issuer, any Lender, or other person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Borrower (or any Lenderother Letter of Credit Obligor) and the beneficiary named in any such Letter of Credit), other than any claim which the Borrower (or any other Letter of Credit Obligor which is the account party with respect to a Letter of Credit) may have against any applicable Letter of Credit Issuer for gross negligence or willful misconduct of such Letter of Credit Issuer in making payment under any applicable Letter of Credit;
(iii) any draft, certificate or other document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents: or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified by a Borrower, the Participants will reimburse and indemnify the Letter of Credit Issuer, in proportion to their respective Revolving Facility Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Letter of Credit Issuer in performing its respective duties in any way related to or arising out of its issuance of Letters of Credit, provided that no Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from the Letter of Credit Issuer's gross negligence or willful misconduct.
Appears in 1 contract
Samples: Credit Agreement (Stoneridge Inc)
Letter of Credit Participations. (i) Immediately upon the issuance by any Facing Agent the U.S. Letter of Credit Issuer of any U.S. Letter of Credit (and on the Restatement Effective Date in respect of Existing Letters of Credit), such Facing Agent the U.S. Letter of Credit Issuer shall be deemed to have sold and transferred to each Multicurrency U.S. Revolving Lender, other than such Facing Agent Credit Lender (each such U.S. Revolving Credit Lender, in its capacity under this Section 2.10(e3.3(a)(i), a “LC U.S. L/C Participant”), and each such LC U.S. L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing Agentthe U.S. Letter of Credit Issuer, without recourse or warranty, an undivided interest and participationparticipation (each a “U.S. L/C Participation”), to the extent of such Multicurrency U.S. L/C Participant’s U.S. Revolving Lender’s Multicurrency Revolver Pro Rata ShareCredit Commitment Percentage, in such each U.S. Letter of Credit, each Drawing substitute therefor, each drawing made thereunder and the obligations of Borrowers the Parent Borrower under this Agreement with respect thereto (although thereto, and any security therefor or guaranty pertaining thereto; provided that the Letter of Credit fees shall Fees will be payable paid directly to the Administrative Agent for the ratable account of the LC Participant U.S. L/C Participants as provided in Section 2.10(g4.1(c) and the LC U.S. L/C Participants shall have no right to receive any portion of any Fronting Fees.
(ii) Immediately upon the facing feesissuance by the Spanish Letter of Credit Issuer of any Spanish Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold and transferred to each Spanish Revolving Credit Lender (each such Spanish Revolving Credit Lender, in its capacity under this Section 3.3(a)(ii), a “Spanish L/C Participant” and, together with the U.S. L/C Participants, the “L/C Participants”), and each such Spanish L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Spanish Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each a “Spanish L/C Participation”, and, together with each U.S. L/C Participation, the “L/C Participations”), to the extent of such Spanish L/C Participant’s Spanish Revolving Credit Commitment Percentage, in each Spanish Letter of Credit, each substitute therefor, each drawing made thereunder and the obligations of the Parent Borrower and the Foreign Subsidiary Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in ; provided that the Multicurrency Revolving Commitments Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the Multicurrency Revolving Lenders, it is hereby agreed that, with respect Spanish L/C Participants as provided in Section 4.1(c) and the Spanish L/C Participants shall have no right to all outstanding Letters receive any portion of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(e) to reflect the new Multicurrency Revolver Pro Rata Share of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may beany Fronting Fees.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent the applicable Letter of Credit Issuer shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent the relevant Letter of Credit Issuer under or in connection with any Letter of Credit issued by it it, if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdictionmisconduct, shall not create for such Facing Agent Letter of Credit Issuer any resulting liability liability.
(i) In the event that the U.S. Letter of Credit Issuer makes any payment under any U.S. Letter of Credit issued by it and the Parent Borrower shall not have repaid such amount in full to the respective U.S. Letter of Credit Issuer pursuant to Section 3.4(a), the U.S. Letter of Credit Issuer shall promptly notify the Administrative Agent (who shall notify each U.S. L/C Participant) of such failure, and each U.S. L/C Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the U.S. Letter of Credit Issuer the amount of such U.S. L/C Participant’s U.S. Revolving Credit Commitment Percentage of the Dollar Equivalent of such unreimbursed payment in Dollars and in immediately available funds; provided, however, that no U.S. L/C Participant shall be obligated to pay to the Administrative Agent for the account of the U.S. Letter of Credit Issuer its U.S. Revolving Credit Commitment Percentage of such unreimbursed amount arising from any Borrower wrongful payment made by the U.S. Letter of Credit Issuer under any such U.S. Letter of Credit as a result of acts or any Lender.omissions constituting willful misconduct or gross negligence on the part of the U.S.
Appears in 1 contract
Letter of Credit Participations. (i) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to (i) each Multicurrency Revolving LenderLender with respect to each Multicurrency Letter of Credit and (ii) each Dollar Revolving Lender with respect to each Dollar Letter of Credit, in each case, other than such Facing Agent Issuing Lender (each such Lender, in its capacity under this Section 2.10(e), a an “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata ShareShare (with respect to Multicurrency Letters of Credit) and such Dollar Revolver Lender’s Dollar Revolver Pro Rata Share (with respect to Dollar Letters of Credit), as the case may be, in such Letter of Credit, each substitute Letter of Credit, each Drawing made thereunder and the obligations of the Borrowers under this Agreement with respect thereto (although Letter of Credit fees shall be payable directly to Administrative Agent for the account of the LC Participant as provided in Section 2.10(g) and the LC Participants shall have no right to receive any portion of the facing issuing fees), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders or the Dollar Revolving Commitments of the Dollar Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(e) to reflect the new Multicurrency Revolver Pro Rata Share or Dollar Revolver Pro Rata Share, as the case may be, of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Dollar Revolving Commitments, as the case may be.
(ii) . In determining whether to pay under any Letter of Credit, such Facing Agent Issuing Lender shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent Issuing Lender any resulting liability to any Borrower Loan Party or any Lender.
Appears in 1 contract
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to (i) in the case of a Multicurrency Facility Letter of Credit, each Multicurrency Revolving LenderFacility RL Lender and (ii) in the case of a Dollar Facility Letter of Credit, other than such Facing Agent each Dollar Facility RL Lender (each such LenderLender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)2A.04, a “LC "L/C Participant”"), and each such LC L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing 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 Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata ShareFacility 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 made thereunder and the obligations of Borrowers the respective Borrower under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Multicurrency Facility RL Lenders or Dollar Facility RL Lenders, as the case may be, as provided in Section 2.10(g3.01(b) and the LC L/C Participants shall have no right to receive any portion of the facing fees), 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 and, as a result thereof the Multicurrency Facility RL Percentages, of the Multicurrency Revolving LendersFacility RL Lenders pursuant to Section 1.13, 1.16 or 13.04, it is hereby agreed that, with respect to all outstanding Multicurrency Facility Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2A.04 to reflect the new Multicurrency Revolver Pro Rata Share 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 1.13, 1.17 or 13.04, it is hereby agreed that with respect to all outstanding Dollar Facility Letters of all Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2A.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 with (in the case of a Multicurrency Revolving CommitmentsFacility 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 2A.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 1.14(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 1.14(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 1.14(d). Furthermore, upon the occurrence of a Sharing Event and as more fully set forth in Section 1.14, 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 1.14.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Lender shall have no obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered by a court of competent jurisdictiondecision), shall not create for such Facing Agent Issuing Lender any resulting liability to any Borrower Account Party or any Lender.
(c) In the event that any Issuing Lender makes any payment or disbursement under any Letter of Credit issued by it and the respective Account Party shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2A.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant therein (i.e., (A) if no Sharing Event has occurred, either (x) the Multicurrency Facility RL Lenders in the case of a Multicurrency Facility Letter of Credit or (y) the Dollar Facility RL Lenders in the case of a Dollar Facility Letter of Credit or (B) if a Sharing Event has occurred, each RL Lender) of such failure, and each L/C Participant therein shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Lender the amount of such L/C Participant's L/C Participation Percentage (as relates to the respective Letter of 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 2A.05(a)) in Dollars (or, to the extent the respective Unpaid Drawing is, in accordance with Section 2A.05(a), to be reimbursed by the respective Account Party in Euros, in Euros) and in same day funds. If the -41- Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any L/C Participant required to fund an Unpaid Drawing under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, in Dollars (or in Euros to the extent the respective Unpaid Drawing is required to be paid by the respective Account Party in Euros pursuant to the provisions of Section 2A.05(a)), such L/C Participant's L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent that, for any reason, such L/C Participant shall not have made its L/C Participation Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Issuing Lender, such 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 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 (or, in the case of amounts owed in Euros, at the Overnight Euro Rate), provided that if any L/C Participant does not make available to the Administrative Agent any amounts required to be made available by it as described above within 2 Business Days after the respective L/C Participant has been notified by the Administrative Agent or the respective Issuing Lender to make such amounts available, then the respective L/C Participant shall pay interest on the amounts demanded of it at the same rates payable from time to time by the respective Account Party on the respective Unpaid Drawings pursuant to Section 2A.05(a). The failure of any L/C Participant to make available to the Administrative Agent for the account of the respective Issuing Lender its relevant L/C Participation Percentage of any payment under any Letter of Credit issued by it shall not relieve any other L/C Participant in the respective Letter of Credit of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its relevant L/C Participation Percentage of 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 relevant L/C Participation Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the L/C Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay each L/C Participant which has paid its relevant L/C Participation Percentage thereof, in Dollars (or in Euros in the case of payments to be made in Euros pursuant to Section 2A.05(a)) and in same day funds, an amount equal to such L/C Participant's share (based on the proportionate aggregate amount funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the principal amount of such 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 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 L/C Participant shall so request, the Administrative Agent shall furnish said L/C Participant with a copy of such Standby Letter of Credit, such amendment or such modification, as the case may be.
(f) Each Issuing Lender (other than DBAG) 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 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 Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which 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), any Agent, any Lender, any Issuing Lender, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Credit Party or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided that the L/C Participants shall not be obligated to reimburse such Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of deliberate acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). Any action taken or omitted to be taken by any Issuing Lender under or in connection with any Letter of Credit shall not create for such Issuing Lender any resulting liability to the L/C Participants or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Appears in 1 contract
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent an Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to each Multicurrency Revolving LenderLender in the applicable Tranche, other than such Facing Agent (and each such Lender, Lender (in its capacity under this Section 2.10(e)3.04, a each, an “LC L/C Participant”), and each such LC Participant ) shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Revolving LenderL/C Participant’s Multicurrency Revolver Pro Rata Share, Facility Percentage in such Letter of Credit, each Drawing or payment made thereunder and the obligations of Borrowers the respective Account Parties under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant respective Lenders as provided in Section 2.10(g4.01(b) and the LC L/C Participants shall have no right to receive any portion of the facing feesany Facing Fees with respect to any such Letters of Credit), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of any Tranche and, as a result thereof, the Multicurrency Revolving LendersFacility Percentages of the applicable Tranche, of the respective Lenders pursuant to Section 2.19 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 3.04 to reflect the new Multicurrency Revolver Pro Rata Share Facility Percentages of the assignor and assignee Lender respective Lenders of the applicable Tranche (or in the circumstances provided in the proviso to the immediately preceding sentence, the Percentages of all the respective Lenders). With respect to each Letter of Credit from time to time outstanding, the percentage participations therein of the various Lenders with Multicurrency Revolving Commitments, calculated as provided above in this Section 3.04(a) (including as provided in the case may beproviso to the immediately preceding sentence) are herein called the “L/C Participation Percentages” of the various Lenders in such Letters of Credit.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent no Issuing Lender shall have no any obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent an Issuing Lender under or in connection with any Letter of Credit issued by it if shall not create for such Issuing Lender any resulting liability to the Account Parties, any other Credit Party, any Lender or any other Person unless such action is taken or omitted in the absence of a to be taken with bad faith breach of its material obligations hereunderfaith, gross negligence negligence, or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered decision).
(c) In the event that an Issuing Lender makes any payment under any Letter of Credit issued by a court of competent jurisdiction, it and the respective Account Parties shall not create 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 relevant L/C Participant of such failure, and each such L/C Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such L/C Participant’s L/C Participation Percentage of such unreimbursed payment in the relevant Available Currency in same day funds. If the Administrative Agent so notifies, prior to 12:00 noon (New York time) on any Business Day, any L/C Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the applicable Issuing Lender in the relevant Available Currency such L/C Participant’s L/C Participation 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 L/C Participation Percentage of the amount of such payment available to the applicable Issuing Lender, such L/C Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such Facing Agent 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 resulting liability such L/C Participant to make available to an Issuing Lender its L/C Participation Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any such other L/C Participant of its obligation hereunder to make available to such Issuing Lender its L/C Participation Percentage of any payment under any Letter of Credit on the date required, as specified above, but no such L/C Participant shall be responsible for the failure of any such other L/C Participant to make available to such Issuing Lender such other L/C Participant’s L/C Participation Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation (or interest thereon) as to which it has received any payments from the respective L/C Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such L/C Participant which has paid its L/C Participation Percentage thereof in the relevant Available Currency and in same day funds, an amount (net of any interest owing to such Issuing Lender with respect to such reimbursement obligation) equal to such L/C Participant’s share (based upon the proportionate aggregate amount originally funded by such L/C Participant to the aggregate amount funded by all such L/C Participants) of the principal amount of such reimbursement obligation and interest thereon (accruing after the funding of the respective participations) so received by the Issuing Lender.
(e) Upon the request of any L/C Participant, each Issuing Lender shall furnish to such L/C Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such L/C Participant.
(f) The obligations of the L/C Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any Borrower 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 Lenderof the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which Aleris 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 L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Aleris or any Subsidiary of Aleris 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. (ia) Immediately upon the issuance by any Facing Agent the respective Issuing Bank of any Letter of Credit, such Facing Agent Issuing Bank shall be deemed to have sold and transferred to (x) in the case of a U.S. Letter of Credit, each Multicurrency Revolving Lender, Lender (other than such Facing Agent Issuing Bank) with a Revolving Loan Commitment and (y) in the case of a German Letter of Credit, each Lender (other than such Issuing Bank) with a German Revolving Loan Sub-Commitment (each such LenderLender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)2.04, a “LC "Participant”"), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Bank, without recourse or warranty, an undivided interest and participation, in a percentage equal to such Participant's RL Percentage, in the extent case of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata Sharea U.S. Letter of Credit, or German RL Percentage, in the case of a German Letter of Credit, in such Letter of Credit, each Drawing drawing or payment made thereunder and the obligations of Borrowers the respective Account Party under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Letter of Credit fees Fees shall be payable paid directly to the Administrative Agent for the ratable account of the LC Participant Lenders based on their RL Percentages or German RL Percentages, as the case may be, as provided in Section 2.10(g3.01(c) and the LC Participants shall have no right to receive any portion of the facing feesany Facing Fees), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Loan Commitments or RL Percentages or German RL Percentages of the Multicurrency Revolving LendersLenders pursuant to this Agreement, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of CreditDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2.04 to reflect the new Multicurrency Revolver Pro Rata Share of the assignor and assignee Lender RL Percentages or of all Lenders with Multicurrency Revolving CommitmentsGerman RL Percentages, as the case may be, of the various Lenders.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Bank shall have no obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Bank under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdictionmisconduct, shall not create for such Facing Agent Issuing Bank any resulting liability to any Account Party, any other Credit Party, any Lender or any other Person.
(c) In the event that any Issuing Bank makes any payment under any Letter of Credit and the respective Account Party shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Bank the amount of such Participant's RL Percentage (in the case of a U.S. Letter of Credit) or German RL Percentage (in the case of a German Letter of Credit) of such unreimbursed payment (in the case of payments made in any currency other than Dollars, taking the Dollar Equivalent thereof) in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the benefit of such Issuing Bank, in Dollars, such Participant's RL Percentage (in the case of a U.S. Letter of Credit) or German RL Percentage (in the case of a German Letter of Credit) of the amount of such payment (or, in the case of payments made in any currency other than Dollars, 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 or German RL Percentage, as the case may be, of the amount of such payment available to the Administrative Agent for the benefit of such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the benefit of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the benefit of such Issuing Bank at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Dollar Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter. The failure of any Participant to make available to such Issuing Bank its RL Percentage or German RL Percentage, as the case may be, of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its RL Percentage or German RL Percentage, as the case may be, of any unreimbursed payment with respect to a Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the benefit of such Issuing Bank such other Participant's RL Percentage or German RL Percentage, as the case may be, of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the benefit of each Participant which has paid its RL Percentage or German RL Percentage, as the case may be, thereof, in Dollars and in same day funds, an amount equal to such Participant's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Bank shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to the Administrative Agent for the benefit of each Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and 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 Lenderof its Subsidiaries or Affiliates may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the respective Account Party or any Subsidiary or Affiliate of the respective Account Party and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent ABL Lender (each such LenderLender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)2.04, a “LC L/C Participant”), and each such LC L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, in a percentage equal to the extent of such Multicurrency Revolving LenderL/C Participant’s Multicurrency Revolver Pro Rata ShareRL Facility Percentage, in such Letter of Credit, each Drawing made thereunder and the obligations of Borrowers the respective Account Party under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant ABL Lenders, as provided in Section 2.10(g3.01(b) and the LC L/C Participants shall have no right to receive any portion of the facing fees), any Facing Fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Loan Commitments and, as a result thereof the RL Facility Percentages, of the Multicurrency Revolving LendersABL Lenders pursuant to Section 1.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2.04 to reflect the new Multicurrency Revolver Pro Rata Share RL Facility Percentages of the assignor and assignee Lender or ABL Lenders. With respect to each Letter of all Credit from time to time outstanding, the percentage participations therein of the various ABL Lenders with Multicurrency Revolving Commitmentscalculated as provided above in this Section 2.04(a) are herein called the “L/C Participation Percentages” of the various ABL Lenders in such Letters of Credit. All calculations of the L/C Participation Percentages shall be made from time to time by the Administrative Agent, as the case may bewhich calculations shall be conclusive absent manifest error.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Lender shall have no obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered by a court of competent jurisdictiondecision), shall not create for such Facing Agent Issuing Lender any resulting liability to any Borrower Account Party or any Lender.
(c) In the event that any Issuing Lender makes any payment or disbursement under any Letter of Credit issued by it and the respective Account Party 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 of such failure, and each L/C Participant therein shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Lender the amount of such L/C Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of the respective Unpaid Drawing (with the amount thereof and the currency in which same is owing to be calculated in accordance with the provisions of Section 2.05(a)) in U.S. Dollars (or, to the extent the respective Unpaid Drawing is, in accordance with Section 2.05(a), to be reimbursed by the respective Account Party in Euros, in Euros) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any L/C Participant required to fund an Unpaid Drawing under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, in U.S. Dollars (or in Euros to the extent the respective Unpaid Drawing is required to be paid by the respective Account Party in Euros pursuant to the provisions of Section 2.05(a)), such L/C Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent that, for any reason, such L/C Participant shall not have made its L/C Participation Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Issuing Lender, such 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 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 (or, in the case of amounts owed in Euros, at the Overnight Euro Rate), provided that if any L/C Participant does not make available to the Administrative Agent any amounts required to be made available by it as described above within 2 Business Days after the respective L/C Participant has been notified by the Administrative Agent or the respective Issuing Lender to make such amounts available, then the respective L/C Participant shall pay interest on the amounts demanded of it at the same rates payable from time to time by the respective Account Party on the respective Unpaid Drawings pursuant to Section 2.05(a). The failure of any L/C Participant to make available to the Administrative Agent for the account of the respective Issuing Lender its relevant L/C Participation Percentage of any payment under any Letter of Credit issued by it shall not relieve any other L/C Participant in the respective Letter of Credit of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its relevant L/C Participation Percentage of 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 relevant L/C Participation Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the L/C Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay each L/C Participant which has paid its relevant L/C Participation Percentage thereof, in U.S. Dollars (or in Euros in the case of payments to be made in Euros pursuant to Section 2.05(a)) and in same day funds, an amount equal to such L/C Participant’s share (based on the proportionate aggregate amount funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the principal amount of such 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 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 L/C Participant shall so request, the Administrative Agent shall furnish said L/C Participant with a copy of such Standby Letter of Credit, such amendment or such modification, as the case may be.
(f) Each Issuing Lender shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by facsimile (or other electronic) 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 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 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), any Agent, any Lender, any Issuing Lender, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Credit Party or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided that the L/C Participants shall not be obligated to reimburse such Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of deliberate acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). Any action taken or omitted to be taken by any Issuing Lender under or in connection with any Letter of Credit shall not create for such Issuing Lender any resulting liability to the L/C Participants or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
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Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred trans- ferred to each Multicurrency Lender with a Revolving LenderLoan Commitment, other than such Facing Agent Issuing Lender (each such Lender, in its capacity under this Section 2.10(e)2.03, a “LC Participant”"PARTICIPANT"), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata ShareParticipant's Adjusted Percentage, in such Letter of Credit, each Drawing drawing made thereunder and the obligations of Borrowers the Borrower under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Participants as provided in Section 2.10(g3.01(b) and the LC Participants shall have no right to receive any portion of the facing feesany Facing Fees with respect to such Letters of Credit), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Loan Commitments or Adjusted Percentages of the Multicurrency Revolving LendersLenders pursuant to Section 1.13 or 13.04 or as a result of a Lender Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of CreditDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2.03 to reflect the new Multicurrency Revolver Pro Rata Share Adjusted Percentages of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Loan Commitments, as the case may be.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent no Issuing Lender shall have no any obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by any Facing Agent Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct misconduct, as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent Issuing Lender any resulting liability to any Borrower Credit Party or any Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2.04(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant, of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such Participant's Adjusted Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to such Issuing Lender in Dollars such Participant's Adjusted Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Adjusted Percentage of the amount of such payment available to such Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate. The failure of any Participant to make available to such Issuing Lender its Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its Adjusted Percentage of any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant's Adjusted Percentage of any such payment.
(d) Whenever 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 forward such payment to the Administrative Agent, which in turn shall distribute to each Participant which has paid its Adjusted Percentage thereof, in Dollars and in same day funds, an amount equal to such Participant's share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the 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 and 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 Issuing Lender, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
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Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to (i) in the case of a Multicurrency Facility Letter of Credit, each Multicurrency Revolving LenderFacility RL Lender and (ii) in the case of a Dollar Facility Letter of Credit, other than such Facing Agent each Dollar Facility RL Lender (each such LenderLender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)2A.04, a “LC "L/C Participant”"), and each such LC L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing 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 Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata ShareFacility 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 made thereunder and the obligations of Borrowers the respective Borrower under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Multicurrency Facility RL Lenders or Dollar Facility RL Lenders, as the case may be, as provided in Section 2.10(g3.01(b) and the LC L/C Participants shall have no right to receive any portion of the facing fees), 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 and, as a result thereof the Multicurrency Facility RL Percentages, of the Multicurrency Revolving LendersFacility RL Lenders pursuant to Section 1.13, 1.16 or 13.04, it is hereby agreed that, with respect to all outstanding Multicurrency Facility Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2A.04 to reflect the new Multicurrency Revolver Pro Rata Share 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 1.13, 1.17 or 13.04, it is hereby agreed that with respect to all outstanding Dollar Facility Letters of all Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2A.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 with (in the case of a Multicurrency Revolving CommitmentsFacility 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 2A.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 1.14(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 1.14(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 1.14(d). Furthermore, upon the occurrence of a Sharing Event and as more fully set forth in Section 1.14, 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 1.14.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Lender shall have no obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered by a court of competent jurisdictiondecision), shall not create for such Facing Agent Issuing Lender any resulting liability to any Borrower Account Party or any Lender.
(c) In the event that any Issuing Lender makes any payment or disbursement under any Letter of Credit issued by it and the respective Account Party shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2A.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant therein (i.e., (A) if no Sharing Event has occurred, either (x) the Multicurrency Facility RL Lenders in the case of a Multicurrency Facility Letter of Credit or (y) the Dollar Facility RL Lenders in the case of a Dollar Facility Letter of Credit or (B) if a Sharing Event has occurred, each RL Lender) of such failure, and each L/C Participant therein shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Lender the amount of such L/C Participant's L/C Participation Percentage (as relates to the respective Letter of 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 2A.05(a)) in Dollars (or, to the extent the respective Unpaid Drawing is, in accordance with Section 2A.05(a), to be reimbursed by the respective Account Party in Euros, in Euros) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any L/C Participant required to fund an Unpaid Drawing under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, in Dollars (or in Euros to the extent the respective Unpaid Drawing is required to be paid by the respective Account Party in Euros pursuant to the provisions of Section 2A.05(a)), such L/C Participant's L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent that, for any reason, such L/C Participant shall not have made its L/C Participation Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Issuing Lender, such 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 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 (or, in the case of amounts owed in Euros, at the Overnight Euro Rate), provided that if any L/C Participant does not make available to the Administrative Agent any amounts required to be made available by it as described above within 2 Business Days after the respective L/C Participant has been notified by the Administrative Agent or the respective Issuing Lender to make such amounts available, then the respective L/C Participant shall pay interest on the amounts demanded of it at the same rates payable from time to time by the respective Account Party on the respective Unpaid Drawings pursuant to Section 2A.05(a). The failure of any L/C Participant to make available to the Administrative Agent for the account of the respective Issuing Lender its relevant L/C Participation Percentage of any payment under any Letter of Credit issued by it shall not relieve any other L/C Participant in the respective Letter of Credit of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its relevant L/C Participation Percentage of 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 relevant L/C Participation Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the L/C Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay each L/C Participant which has paid its relevant L/C Participation Percentage thereof, in Dollars (or in Euros in the case of payments to be made in Euros pursuant to Section 2A.05(a)) and in same day funds, an amount equal to such L/C Participant's share (based on the proportionate aggregate amount funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the principal amount of such 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 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 L/C Participant shall so request, the Administrative Agent shall furnish said L/C Participant with a copy of such Standby Letter of Credit, such amendment or such modification, as the case may be.
(f) Each Issuing Lender (other than DBAG) 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 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 Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which 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), any Agent, any Lender, any Issuing Lender, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Credit Party or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided that the L/C Participants shall not be obligated to reimburse such Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of deliberate acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). Any action taken or omitted to be taken by any Issuing Lender under or in connection with any Letter of Credit shall not create for such Issuing Lender any resulting liability to the L/C Participants or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
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Letter of Credit Participations. (i) Immediately upon the issuance by any Facing Agent of any Letter of CreditEach Fronting Lender irrevocably grants, such Facing Agent shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent (each such Lenderand, in its capacity under this Section 2.10(e)order to induce each Fronting Lender to issue any Fronted Letters of Credit hereunder, a “LC Participant”), each Lender irrevocably accepts and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received hereby purchases from such Facing AgentFronting Lender on the terms and conditions hereinafter stated, without recourse or warrantyfor its own account and risk, an undivided interest and participation, (equal to the extent Lender's Proportion of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata Share, ) in such Letter of Credit, Fronting Lender's obligations and rights under each Drawing made thereunder and the obligations of Borrowers under this Agreement with respect thereto (although Fronted Letter of Credit fees shall be payable directly issued by such Fronting Lender pursuant to Administrative this Section 3.8 and the amount of each draft paid by such Fronting Lender thereunder. Each Lender unconditionally and irrevocably agrees with each Fronting Lender that, on or before the close of business of such Fronting Lender on each day on which a draft is paid under a Fronted Letter of Credit for which such Fronting Lender is not reimbursed in full by the Borrower in accordance with the terms of this Agreement, including, without limitation, pursuant to Section 3.8(j) (a "Participation Date"), such Lender will pay to the Agent for the account of such Fronting Lender at the LC Participant Agent's Branch of Account the Lender's Proportion of such Lender of any such unpaid amount. Each Fronting Lender shall notify the Agent who shall notify each Lender of the occurrence of a Participation Date and the amount payable by such Lender to the Agent based on the Lender's Proportion of such Lender. Any such notice may be oral if promptly confirmed in writing (including telecopy or electronic mail). If any Lender fails to make any such payment on the day on which such Lender receives notice as provided in above, then interest shall accrue on such Lender's obligation to make such payment during the period from such day to the day such Lender makes such payment (or, if earlier, the date on which the Borrower reimburses the applicable Fronting Lender as required pursuant to Section 2.10(g) and the LC Participants shall have no right to receive any portion of the facing fees3.8(j)), at a rate determined by the Agent (such rate to be conclusive and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(e) to reflect the new Multicurrency Revolver Pro Rata Share of the assignor and assignee binding on such Lender or of all Lenders with Multicurrency Revolving Commitments, the Borrower as the case may be.
(ii) In determining whether to pay under any Letter of Credit, such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face in accordance with the requirements Agent's usual banking practice for similar advances to financial institutions of like standing to such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent any resulting liability to any Borrower or any Lender.
Appears in 1 contract
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of Credit, but subject to Section 2C.03 to the extent applicable in the case of Non-Dollar Denominated Letters of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent CL Lender (each such LenderLender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)2A.04, a an “LC L/C Participant”), and each such LC L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participationparticipation (each an “L/C Participation”), in a percentage equal to the extent of such Multicurrency Revolving LenderL/C Participant’s Multicurrency Revolver Pro Rata Share, CL Percentage in such Letter of Credit, and each Drawing made thereunder and the obligations of Borrowers the respective Account Party under this Agreement with respect thereto (although Letter of Credit fees CL Facility Fees shall be payable directly to the Administrative Agent for the account of the LC Participant CL Lenders as provided in Section 2.10(g3.01(a) and the LC L/C Participants shall have no right to receive any portion of the facing fees), any Facing Fees or any administration fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Credit-Linked Commitments and, as a result thereof, the CL Percentages of the Multicurrency Revolving LendersCL Lenders pursuant to Section 1.13 or 13.04, it is hereby agreed that, that with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2A.04 to reflect the new Multicurrency Revolver Pro Rata Share CL Percentages of the assignor CL Lenders. With respect to each Letter of Credit from time to time outstanding, all calculations of the percentage participations therein of the various CL Lenders shall be made from time to time by the Administrative Agent, which calculations shall be conclusive absent manifest error. Furthermore, upon the occurrence of a Sharing Event and assignee Lender or as more fully set forth in Section 1.14, additional sub-participations may be required to be granted by the various CL Lenders in their participations in outstanding Letters of all Lenders with Multicurrency Revolving CommitmentsCredit, as in each case in accordance with, and subject to the case may beprovisions of, Section 1.14.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Lender shall have no obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered decision) shall not create for such Issuing Lender any resulting liability to any Account Party or any Lender.
(c) In the event that any Issuing Lender makes any payment or disbursement under any Letter of Credit issued by it and the respective Account Party shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2A.05(a) by the date required by said Section 2A.05(a) for such reimbursement, 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 (including in its capacity as an L/C Participant) 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 Unpaid Drawing is in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof, as determined by the Administrative Agent on the date on which such payment or disbursement was made under the respective 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, in which case the Total Credit-Linked Commitment shall be reduced by the amount so applied (with a corresponding reduction in the Credit-Linked Commitment of each CL Lender equal to such CL Lender’s CL Percentage of such aggregate amount so applied); provided that any portion of the Unpaid Drawings with respect to a Non-Dollar Denominated Letter of Credit, which, because of currency fluctuations, represents amounts in excess of the Total Credit-Linked Deposits (as more fully described in Section 2C.03), shall not be reimbursed from Credit-Linked Deposits but shall instead be immediately repaid by the respective Account Party. Furthermore, if any Specified Default or any Event of Default then exists, the respective Issuing Lender may, with respect to any payment or disbursement made by it under any Letter of Credit, request the Deposit Bank, in which case each CL Lender hereby irrevocably authorizes the Deposit Bank (and the Deposit Bank hereby agrees), to reimburse the Issuing Lender, solely from such CL Lender’s CL Percentage of the Credit-Linked Deposits on deposit in the Credit-Linked Deposit Account with the Deposit Bank, for any Drawing under such Letter of Credit as provided in the immediately preceding sentence (notwithstanding the date of reimbursement of any such Drawings by the date required by Section 2A.05(a)), in which case the Total Credit-Linked Commitment shall be reduced by the amount so applied as otherwise provided in the immediately preceding sentence, and any amounts actually received pursuant to Section 2A.05(a) shall be applied to reimburse L/C Participants as provided in following Section 2A.04(d).
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the L/C Participants (or from the Deposit Bank on their behalf) pursuant to Section 2A.04(c) above, such Issuing Lender shall, after paying itself any amounts owing to it as described in Section 2C.03 in the case of payments received with respect to Non-Dollar Denominated Letters of Credit, pay (in same day funds in Dollars) to the Administrative Agent (and the Administrative Agent shall promptly pay (in same day funds in Dollars) to each L/C Participant which has paid its relevant CL Percentage thereof) an amount equal to such L/C Participant’s share (based on the proportionate aggregate amount funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the principal amount of such 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 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 L/C Participant shall so request, the Administrative Agent shall furnish said L/C Participant with a copy of such Standby Letter of Credit, such amendment or such modification, as the case may be.
(f) Each Issuing Lender (other than DBAG) shall deliver to the Administrative Agent and the Deposit Bank, 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 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, setoff or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which 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), any Agent, any Lender, any Issuing Lender, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Credit Party or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided that the L/C Participants shall not be obligated to reimburse such Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of deliberate acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction, 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 Facing Agent Issuing Lender any resulting liability to any Borrower the L/C Participants or any Lenderother Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Letter of Credit Participations. (ia) Immediately upon the issuance issuance, increase or extension by any Facing Agent Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent Lender (each such LenderRevolving Lender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)3.04, a “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, in a percentage equal to the extent of such Multicurrency Revolving LenderParticipant’s Multicurrency Revolver Pro Rata Share, RL Percentage in such Letter of Credit, each Drawing drawing or payment made thereunder (each, a “Drawing”) and the obligations of Borrowers the Borrower under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Revolving Lenders as provided in Section 2.10(g4.01(d) and the LC Participants shall have no right to receive any portion of the facing fees), any Facing Fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Loan Commitments and, as a result thereof the RL Percentages, of the Multicurrency Revolving LendersLenders pursuant to Sections 2.13 or 13.04, it is hereby agreed that, that with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 3.04 to reflect the new Multicurrency Revolver Pro Rata Share RL Percentages of the assignor and assignee Lender or Revolving Lenders. With respect to each Letter of all Credit from time to time outstanding, the percentage participations therein of the various Lenders with Multicurrency calculated as provided above in this Section 3.04(a) are herein called the “L/C Participation Percentages” of the various Revolving CommitmentsLenders in such Letters of Credit. All calculations of the L/C Participation Percentages shall be made from time to time by the Administrative Agent, as the case may bewhich calculations shall be conclusive absent manifest error.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent no Issuing Lender shall have no any obligation relative to the LC Participants other Revolving Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent an Issuing Lender under or in connection with any Letter of Credit issued by it if shall not create for such Issuing Lender any resulting liability to the Borrower, any other Credit Party, any Revolving Lender or any other Person unless such action is taken or omitted in the absence of a bad faith breach of its material obligations hereunder, to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and nonappealable decision).
(c) In the event that an Issuing Lender makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of such unreimbursed payment in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York City time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender such Participant’s L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its L/C Participation Percentage of the amount of such payment available to the 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 relevant L/C Participation 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 relevant L/C Participation 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 relevant L/C Participation Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever (except in the case of an Issuing Lender’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered by a court decision)) and shall be made in accordance with the terms and conditions of competent jurisdictionthis Agreement under all circumstances, shall not create for such Facing Agent including, without limitation, any resulting liability to 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 Lenderof the Guarantors may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any Guarantor 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
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to (i) in the case of a Multicurrency Facility Letter of Credit, each Multicurrency Revolving LenderFacility RL Lender and (ii) in the case of a Dollar Facility Letter of Credit, other than such Facing Agent each Dollar Facility RL Lender (each such LenderLender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)2A.04, a “LC "L/C Participant”"), and each such LC L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing 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 Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata ShareFacility 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 made thereunder and the obligations of Borrowers the respective Borrower under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant Multicurrency Facility RL Lenders or Dollar Facility RL Lenders, as the case may be, as provided in Section 2.10(g3.01(b) and the LC L/C Participants shall have no right to receive any portion of the facing fees), 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 and, as a result thereof the Multicurrency Facility RL Percentages, of the Multicurrency Revolving LendersFacility RL Lenders pursuant to Section 1.13 or 13.04, it is hereby agreed that, with respect to all outstanding Multicurrency Facility Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2A.04 to reflect the new Multicurrency Revolver Pro Rata Share 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 1.13 or 13.04, it is hereby agreed that with respect to all outstanding Dollar Facility Letters of all Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2A.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 with (in the case of a Multicurrency Revolving CommitmentsFacility 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 2A.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 1.14(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 1.14(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 1.14(d). Furthermore, upon the occurrence of a Sharing Event and as more fully set forth in Section 1.14, 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 1.14.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Lender shall have no obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered by a court of competent jurisdictiondecision), shall not create for such Facing Agent Issuing Lender any resulting liability to any Borrower Account Party or any Lender.
(c) In the event that any Issuing Lender makes any payment or disbursement under any Letter of Credit issued by it and the respective Account Party shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2A.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant therein (i.e., (A) if no Sharing Event has occurred, either (x) the Multicurrency Facility RL Lenders in the case of a Multicurrency Facility Letter of Credit or (y) the Dollar Facility RL Lenders in the case of a Dollar Facility Letter of Credit or (B) if a Sharing Event has occurred, each RL Lender) of such failure, and each L/C Participant therein shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Lender the amount of such L/C Participant's L/C Participation Percentage (as relates to the respective Letter of 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 2A.05(a)) in Dollars (or, to the extent the respective Unpaid Drawing is, in accordance with Section 2A.05(a), to be reimbursed by the respective Account Party in Euros, Euros) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any L/C Participant required to fund an Unpaid Drawing under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, in Dollars (or in Euros to the extent the respective Unpaid Drawing is required to be paid by the respective Account Party in Euros, as the case may be, pursuant to the provisions of Section 2A.05(a)), such L/C Participant's L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such Business Day in same day funds. If and to the extent that, for any reason, such L/C Participant shall not have made its L/C Participation Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Issuing Lender, such 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 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 (or, in the case of amounts owed in Euros, at the Overnight Euro Rate), provided that if any L/C Participant does not make available to the Administrative Agent any amounts required to be made available by it as described above within 2 Business Days after the respective L/C Participant has been notified by the Administrative Agent or the respective Issuing Lender to make such amounts available, then the respective L/C Participant shall pay interest on the amounts demanded of it at the same rates payable from time to time by the respective Account Party on the respective Unpaid Drawings pursuant to Section 2A.05(a). The failure of any L/C Participant to make available to the Administrative Agent for the account of the respective Issuing Lender its relevant L/C Participation Percentage of any payment under any Letter of Credit issued by it shall not relieve any other L/C Participant in the respective Letter of Credit of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its relevant L/C Participation Percentage of 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 relevant L/C Participation Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Issuing Lender any payments from the L/C Participants pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay each L/C Participant which has paid its relevant L/C Participation Percentage thereof, in Dollars (or in Euros in the case of payments to be made in Euros pursuant to Section 2A.05(a)) and in same day funds, an amount equal to such L/C Participant's share (based on the proportionate aggregate amount funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the principal amount of such 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 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 L/C Participant shall so request, the Administrative Agent shall furnish said L/C Participant with a copy of such Standby Letter of Credit, such amendment or such modification, as the case may be.
(f) Each Issuing Lender (other than DBAG) shall deliver to the Administrative Agent, promptly on the first Business Day of each week, by facsimile transmis- sion, 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 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 Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which 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), any Agent, any Lender, any Issuing Lender, any L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Credit Party or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default; provided that the L/C Participants shall not be obligated to reimburse such Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a result of deliberate acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision). Any action taken or omitted to be taken by any Issuing Lender under or in connection with any Letter of Credit shall not create for such Issuing Lender any resulting liability to the L/C Participants or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Appears in 1 contract
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent the respective Issuing Bank of any Letter of Credit, such Facing Agent Issuing Bank shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, RL Lender (other than such Facing Agent Issuing Bank) (each such LenderLender with respect to any Letter of Credit, in its capacity under this Section 2.10(e)2.04, a “LC Participant”"PARTICIPANT"), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Bank, without recourse or warranty, an undivided interest and participation, in a percentage equal to the extent of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata ShareParticipant's Dollar Percentage, in such Letter of Credit, each Drawing drawing or payment made thereunder and the obligations of Borrowers the Corporation under this Agreement with respect thereto, and any guaranty pertaining thereto (although Letter of Credit fees Fees shall be payable paid directly to the Administrative Agent for the ratable account of the LC Participant RL Lenders based on their Dollar Percentages as provided in Section 2.10(g3.01(b) and the LC Participants shall have no right to receive any portion of any Facing Fees); PROVIDED that, upon the facing fees)occurrence of a Sharing Event, the participations described above shall be automatically adjusted so that each RL Lender shall have a participation in all then outstanding Letters of Credit, and any security therefor or guaranty pertaining theretorelated obligations as described above, in a percentage equal to its RL Percentage (which adjustments shall occur concurrently with the adjustments described in Section 1.17). Upon any change in the Multicurrency Revolving Loan Commitments or Dollar Percentages of the Multicurrency Revolving LendersRL Lenders pursuant to this Agreement (or in the circumstances provided in the proviso to the immediately preceding sentence, the RL Percentages of the RL Lenders pursuant to this Agreement), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of CreditDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2.04 to reflect the new Multicurrency Revolver Pro Rata Share Dollar Percentages or, in the circumstances described in the proviso to the immediately preceding sentence, the RL Percentages of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may bevarious RL Lenders.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Bank shall have no obligation relative to the LC Participants or any other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements -35- of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Bank under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct (as finally determined by a final and non-appealable judgment rendered by a court of competent jurisdiction), shall not create for such Facing Agent Issuing Bank any resulting liability to the Corporation, any Borrower other Credit Party, any Lender or any Lenderother Person.
(c) If any Issuing Bank makes any payment under any Letter of Credit and the Corporation shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the benefit of such Issuing Bank the amount of such Participant's Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the benefit of such Issuing Bank, in Dollars, such Participant's Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of the amount of such payment on such Business Day in same day funds; PROVIDED, HOWEVER, that no Participant shall be obligated to pay to the Administrative Agent for the benefit of such Issuing Bank its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of such unreimbursed amount for any wrongful payment made by such Issuing Bank under a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Bank (as finally determined by a court of competent jurisdiction). If and to the extent such Participant shall not have so made its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of the amount of such payment available to the Administrative Agent for the benefit of such Issuing Bank, such Participant agrees to pay to the Administrative Agent for the benefit of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the benefit of such Issuing Bank at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Dollar Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter. The failure of any Participant to make available to such Issuing Bank its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of any unreimbursed payment with respect to a Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the benefit of such Issuing Bank such other Participant's Dollar Percentage (or, after the occurrence of a Sharing Event, its RL Percentage) of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to the Administrative Agent for the benefit of each Participant which has paid its Dollar Percentage (or, after the occurrence of a Sharing Event, 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. The payment required to be made by the respective Issuing Bank to the Administrative Agent pursuant to the preceding sentence shall be made on the day the respective payment of a reimbursement is received by such Issuing Bank (if payment was actually received by such Issuing Bank prior to 12:00 Noon (local time in the city in which such payments are to be made)).
(e) The obligations of the Participants to make payments to the Administrative Agent for the benefit of each Issuing Bank with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever (except as otherwise provided in the proviso to the second sentence of Section 2.04(c)) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which any Credit Party or any of its Subsidiaries or Affiliates may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), any Agent, any Issuing Bank, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Credit Party or any Subsidiary or Affiliate of any Credit Party and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any guaranty for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent Issuing Bank of any Letter of Credit, such Facing Agent Issuing Bank shall be deemed to have sold and transferred to each Multicurrency Bank with a Revolving LenderLoan Commitment, other than such Facing Agent Issuing Bank (each such LenderBank, in its capacity under this Section 2.10(e)2.03, a “LC "Participant”"), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Bank, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata ShareParticipant's Adjusted RL Percentage, in such Letter of Credit, each Drawing drawing made thereunder and the obligations of Borrowers the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although the Letter of Credit fees Fee shall be payable directly to Administrative the Managing Agent for the account of the LC Participant Participants as provided in Section 2.10(g3.01(b) and the LC Participants shall have no right to receive any portion of the facing feesany Facing Fees), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency respective Revolving Loan Commitments or Adjusted RL Percentages of the Multicurrency Revolving LendersBanks pursuant to Section 1.13 or 13.04 or as a result of a Bank Default, it is hereby agreed that, with respect to all such outstanding Letters of Credit and Unpaid Drawings relating to Letters of CreditDrawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2.03 to reflect the new Multicurrency Revolver Pro Rata Share Adjusted RL Percentages of the assignor and assignee Lender Bank or of all Lenders Banks with Multicurrency respective Revolving Loan Commitments, as the case may be.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent Issuing Bank shall have no obligation relative to the LC Participants other Banks other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the
(c) In the requirements event that any Issuing Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Managing Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Bank the amount of such Participant's Adjusted RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Managing Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to such Issuing Bank in Dollars such Participant's Adjusted RL Percentage of the amount of such payment on such Business Day in same day funds. Any action taken or omitted If and to be taken by the extent such Participant shall not have so made its Adjusted RL Percentage of the amount of such payment available to such Issuing Bank, such Participant agrees to pay to such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Bank at the overnight Federal Funds Rate. The failure of any Facing Agent Participant to make available to such Issuing Bank its Adjusted RL Percentage of any payment under or in connection with any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Bank its Adjusted RL Percentage of any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Bank such other Participant's Adjusted RL Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Bank shall pay to each Participant which has paid its Adjusted 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) The obligations of the Participants to make payments to each Issuing Bank with respect to Letters of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final shall be irrevocable and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent any resulting liability subject to any qualification or exception whatsoever and shall be made in accordance with the
(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 Lenderof 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 Managing Agent, any Issuing Bank, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower 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. (i) Immediately upon the issuance by any Facing Agent Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to (i) each Multicurrency Revolving LenderLender with respect to each Multicurrency Letter of Credit and (ii) each Dollar Revolving Lender with respect to each Multicurrency Letter of Credit and (ii) each Dollar Revolving Lender with respect to each Dollar Letter of Credit, in each case, other than such Facing Agent Issuing Lender (each such Lender, in its capacity under this Section 2.10(e), a an “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata ShareShare (with respect to Multicurrency Letters of Credit) and such Dollar Revolver Lender’s Dollar Revolver Pro Rata Share (with respect to Dollar Letters of Credit), as the case may be, in such Letter of Credit, each substitute Letter of Credit, each Drawing made thereunder and the obligations of the Borrowers under this Agreement with respect thereto (although Letter of Credit fees shall be payable directly to Administrative Agent for the account of the LC Participant as provided in Section 2.10(g) and the LC Participants shall have no right to receive any portion of the facing issuing fees), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders or the Dollar Revolving Commitments of the Dollar Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(e) to reflect the new Multicurrency Revolver Pro Rata Share or Dollar Revolver Pro Rata Share, as the case may be, of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments or Dollar Revolving Commitments, as the case may be.
(ii) . In determining whether to pay under any Letter of Credit, such Facing Agent Issuing Lender shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent Issuing Lender under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent Issuing Lender any resulting liability to any Borrower Loan Party or any Lender.
Appears in 1 contract
Letter of Credit Participations. (i) Immediately upon the issuance by any Facing Agent of any Letter of Credit, such Facing Agent shall -------------------------------- be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent (each such Lender, in its capacity under this Section 2.10(e2.8(e), a “"LC Participant”"), and each such LC Participant shall be deemed irrevocably and unconditionally to have --------------- --------------- purchased and received from such Facing Agent, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Revolving Lender’s Multicurrency 's Revolver Pro Rata Share, in such Letter of Credit, each substitute Letter of Credit, each Drawing made thereunder and the obligations of Borrowers Company under this Agreement with respect thereto (although Letter of Credit fees shall be payable directly to Administrative Agent for the account of the LC Participant as provided in Section 2.10(g2.8(g) and the LC Participants shall --------------- have no right to receive any portion of the facing fees), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(e2.8(e) to reflect -------------- the new Multicurrency Revolver Pro Rata Share of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may be.
(ii) . In determining whether to pay under any Letter of Credit, such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent any resulting liability to any Borrower Company or any Lender.
Appears in 1 contract
Samples: Credit Agreement (Us Can Corp)
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent an Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to each Multicurrency Revolving RL Lender or CL Lender, other than such Facing Agent (as the case may be, and each such Lender, RL Lender or CL Lender (in its capacity under this Section 2.10(e)2.04, a “LC "Participant”), and each such LC Participant ") shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata ShareParticipant's RL Percentage or CL Percentage, as the case may be, in such Letter of Credit, each Drawing drawing or payment made thereunder and the obligations of Borrowers the Borrower under this Agreement with respect thereto (although Letter of Credit fees shall be payable directly to Administrative Agent for the account of the LC Participant as provided in Section 2.10(g) and the LC Participants shall have no right to receive any portion of the facing fees)thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments RL Percentages of the Multicurrency Revolving RL Lenders or in the CL Percentages of the CL Lenders, in each case pursuant to Section 1.13 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 2.04 to reflect the new Multicurrency Revolver Pro Rata Share RL Percentages or CL Percentages of the assignor and assignee RL Lender or of all Lenders with Multicurrency Revolving CommitmentsCL Lender, as the case may be.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent no Issuing Lender shall have no any obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent an Issuing Lender under or in connection with any Letter of Credit issued by it if 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 in the absence of a bad faith breach of its material obligations hereunder, to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered decision).
(i) In the event that an Issuing Lender makes any payment under any WC Letter of Credit issued by a court of competent jurisdiction, it and the Borrower shall not create 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 relevant Participant of such failure, and each such Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such Participant's RL Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any Participant required to fund a payment under a WC Letter of Credit, such Participant shall make available to the respective Issuing Lender in Dollars such Participant's RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of such payment available to the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans 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 WC Letter of Credit issued by such Issuing Lender shall not relieve any such other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any WC Letter of Credit on the date required, as specified above, but no such Participant shall be responsible for the failure of any such other Participant to make available to such Issuing Lender such other Participant'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 Facing 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 resulting liability payments from the respective Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage or CL Percentage thereof, as the case may be, in Dollars and in same day funds, an amount equal to such Participant's 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 funding of the respective participations (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, except for a payment made as required under Section 4.02(g), for deposit in the Credit-Linked Deposit Account).
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any Lenderof its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower or any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
Appears in 1 contract
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent Issuing Bank of any Tranche 1 Letter of Credit, such Facing Agent Issuing Bank shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent Tranche 1 RC Bank (each such LenderTranche 1 RC Bank, in its capacity under this Section 2.10(e2.03(a), a “LC "Tranche 1 Participant”"), and each such LC Tranche 1 Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Bank, without recourse or warranty, an undivided interest and participationparticipation (each a "Tranche 1 Participation"), to the extent of such Multicurrency Tranche 1 Participant's Tranche 1 Revolving Lender’s Multicurrency Revolver Pro Rata Share, Percentage in such Tranche 1 Letter of Credit, each Drawing substitute letter of credit, each drawing made thereunder and the obligations of the Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Tranche 1 Letter of Credit fees shall Fees will be payable paid directly to the Administrative Agent for the ratable account of the LC Participant Tranche 1 Participants as provided in Section 2.10(g3.01(b) and the LC Tranche 1 Participants shall have no right to receive any portion of the facing feesany Facing Fees), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Tranche 1 Revolving Loan Commitments of the Multicurrency Revolving LendersBanks pursuant to Section 1.13 or 14.04, it is hereby agreed that, with respect to all outstanding Tranche 1 Letters of Credit Credit, and Unpaid Drawings relating to in respect of Tranche 1 Letters of Credit, there shall be an automatic adjustment to the Tranche 1 Participations pursuant to this Section 2.10(e) 2.03 to reflect the new Multicurrency Revolver Pro Rata Share Tranche 1 Revolving Percentages of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may beBank.
(iib) Immediately upon the issuance by any Issuing Bank of any Tranche 2 Letter of Credit, such Issuing Bank shall be deemed to have sold to each Tranche 2 RC Bank (each such Tranche 2 RC Bank, in its capacity under this Section 2.03(b), a "Tranche 2 Participant"), and each such Tranche 2 Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation (each a "Tranche 2 Participation"), to the extent of such Tranche 2 Participant's Tranche 2 Revolving Percentage in such Tranche 2 Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Tranche 2 Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the Tranche 2 Participants as provided in Section 3.01(c) and the Tranche 2 Participants shall have no right to receive any portion of any Facing Fees). Upon any change in the Tranche 2 Revolving Loan Commitments of the Banks pursuant to Section 1.13 or 14.04, it is hereby agreed that, with respect to all outstanding Tranche 2 Letters of Credit, and Unpaid Drawings in respect of Tranche 2 Letters of Credit, there shall be an automatic adjustment to the Tranche 2 Participations pursuant to this Section 2.03 to reflect the new Tranche 2 Revolving Percentages of the assignor and assignee Bank.
(c) In determining whether to pay under any Letter of Credit, such Facing Agent the respective Issuing Bank shall have no obligation relative to the LC respective Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent an Issuing Bank under or in connection with any Letter of Credit issued by it Credit, if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdictionmisconduct, shall not create for such Facing Agent Issuing Bank any resulting liability liability.
(d) In the event that any Issuing Bank makes any payment under any Letter of Credit and the applicable Borrower shall not have reimbursed such amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall promptly notify the Administrative Agent and after receipt of such notice, the Administrative Agent will notify each respective Participant of such failure, and each such Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of such Issuing Bank, the amount of such Participant's Tranche 1 Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be, of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the respective Issuing Bank such Participant's Tranche 1 Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be, of the amount of such payment on such Business Day in Dollars and in same day funds. If and to the extent such Participant shall not have so made its Tranche 1 Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be, of the amount of such payment available to the Administrative Agent for the account of the respective Issuing Bank, such Participant agrees to pay to the Administrative Agent for the account of such Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of the Issuing Bank at the overnight Federal Funds Rate (or, in the case of Letters of Credit issued outside of the United States of America, the Issuing Bank's customary rate for interbank advances). The failure of any Participant to make available to the Administrative Agent for the account of any Issuing Bank its Tranche 1 Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be, of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Bank its Tranche 1 Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be, of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent, such other Participant's Tranche 1 Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be, of any such payment.
(e) Whenever the Issuing Bank receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of an Issuing Bank any payments from the Participants pursuant to clause (d) above, such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Tranche 1 Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be, thereof, in Dollars and in same day funds, an amount equal to such Participant's Tranche 1 Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be, of the principal amount of such reimbursement and of interest reimbursed thereon accruing from and after the date of the purchase of the respective Participations.
(f) The obligations of the Participants to make payments to the Administrative Agent for the account of Issuing Banks with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or any other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances (other than in the case of gross negligence or willful misconduct of the Issuing Bank):
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right which any Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any LenderPerson for whom any such transferee may be acting), the Administrative Agent, any Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
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Samples: Credit Agreement (Gleason Corp /De/)
Letter of Credit Participations. (i) Immediately upon Concurrently with the issuance by any Facing Agent of any each Letter of CreditCredit pursuant to this Agreement (including, such Facing Agent without limitation, the deemed issuance of the Existing Letters of Credit pursuant to the first sentence of Section 2.7(c)), U. S. Bank shall be -------------- deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent (each such Lender, in its capacity under this Section 2.10(e), a “LC Participant”)Bank, and each such LC Participant Bank shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentU. S. Bank, without recourse or warranty, an undivided interest Letter of Credit Participation in each Letter of Credit and participationthe Letter of Credit Obligations with respect thereto and any security therefor. U. S. Bank shall retain its individual Letter of Credit Participation in each Letter of Credit and the Letter of Credit Obligations with respect thereto and any security therefor. U. S. Bank shall promptly give each other Bank notice of the issuance of each Letter of Credit and the amount of such Bank's Letter of Credit Participation therein.
(ii) U. S. Bank shall promptly notify the Borrower and each Bank of each demand for payment under a Letter of Credit and of the date on which such payment is to be made and the amount of such Bank's Revolving Loan to be made pursuant to Sections 2.3 and 2.7(d), if any. ----------------------- By not later than 1:00 p.m. (Administrative Bank time), on each date on which payment is to be made to U. S. Bank, each Bank shall pay to U. S. Bank in immediately available funds, such Bank's Percentage of such demand for payment which the Borrower has not paid to U. S. Bank, by Revolving Loans or otherwise. Each Bank's obligation to make such amounts available to U. S. Bank shall be irrevocable and shall not be subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances except where the Borrower is not liable to U. S. Bank for payment of a draw on a Letter of Credit under Section ------- 2.7(f)(v). If and to the extent of any Bank shall not have made such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata Share--------- amount available to U. S. Bank on any such date, in such Letter of CreditBank agrees, each Drawing made thereunder and the obligations of Borrowers under this Agreement with respect thereto (although Letter of Credit fees shall be payable directly upon demand, to Administrative Agent pay interest on such amount to U. S. Bank for the account of U. S. Bank for each day from and including the LC Participant as provided date on which such payment was to be made to but excluding the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in Section 2.10(geffect, based upon a year of 360 days. Any Bank's failure to make available to U. S. Bank its Percentage of any demand for payment under a Letter of Credit shall not relieve any other Bank of its obligation to make available to U. S. Bank its Percentage of such demand for payment on the date such payment is to be made, but no Bank shall be responsible for the failure of any other Bank to make available to U. S. Bank such other Bank's Percentage of any such payment.
(iii) and the LC Participants shall have no right to receive Whenever, at any portion of the facing fees), and time after U. S. Bank has made a payment under any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters Letter of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(e) to reflect the new Multicurrency Revolver Pro Rata Share has received from another Bank such other Bank's Percentage of the assignor and assignee Lender unreimbursed portion of such payment, U. S. Bank receives any reimbursement on account of such unreimbursed portion or any payment of all Lenders interest on account thereof, U. S. Bank will promptly distribute to such other Bank its pro rata share thereof in --- ---- like funds as received in accordance with Multicurrency Revolving CommitmentsSection 4.4; provided, ----------- -------- however, that in the event that U. S. Bank is required to return such ------- reimbursement or such payment of interest (as the case may be.
(ii) In determining whether to pay under any Letter of Credit), such Facing Agent shall have no obligation relative other Bank will return to the LC Participants other than U. S. Bank any portion thereof previously distributed to confirm that any documents it by U. S. Bank in like funds as such reimbursement or payment is required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken returned by any Facing Agent under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent any resulting liability to any Borrower or any LenderU. S. Bank.
Appears in 1 contract
Letter of Credit Participations. (ia) Immediately upon the issuance by any Facing Agent an Issuing Lender of any Letter of Credit, such Facing Agent Issuing Lender shall be deemed to have sold and transferred to each Multicurrency Revolving LenderLender in the respective Tranche, other than such Facing Agent (and each such Lender, Lender (in its capacity under this Section 2.10(e)3.04, a each, an “LC L/C Participant”), and each such LC Participant ) shall be deemed irrevocably and unconditionally to have purchased and received from such Facing AgentIssuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Revolving LenderL/C Participant’s Multicurrency Revolver Pro Rata Share, Facility Percentage in such Letter of Credit, each Drawing or payment made thereunder and the obligations of Borrowers the respective Account Parties under this Agreement with respect thereto (although Letter of Credit fees Fees shall be payable directly to the Administrative Agent for the account of the LC Participant respective Lenders as provided in Section 2.10(g4.01(b) and the LC L/C Participants shall have no right to receive any portion of the facing feesany Facing Fees with respect to any such Letters of Credit), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of any Tranche and, as a result thereof, the Multicurrency Revolving LendersFacility Percentages of the respective Tranche, of the respective Lenders pursuant to Section 2.19 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Creditthereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.10(e) 3.04 to reflect the new Multicurrency Revolver Pro Rata Share Facility Percentages of the assignor and assignee Lender respective Lenders of the respective Tranche (or in the circumstances provided in the proviso to the immediately preceding sentence, the Percentages of all the respective Lenders). With respect to each Letter of Credit from time to time outstanding, the percentage participations therein of the various Lenders with Multicurrency Revolving Commitments, calculated as provided above in this Section 3.04(a) (including as provided in the case may beproviso to the immediately preceding sentence) are herein called the “L/C Participation Percentages” of the various Lenders in such Letters of Credit.
(iib) In determining whether to pay under any Letter of Credit, such Facing Agent no Issuing Lender shall have no any obligation relative to the LC Participants other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent an Issuing Lender under or in connection with any Letter of Credit issued by it if shall not create for such Issuing Lender any resulting liability to the Account Parties, any other Credit Party, any Lender or any other Person unless such action is taken or omitted in the absence of a bad faith breach of its material obligations hereunder, to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable judgment rendered decision).
(c) In the event that an Issuing Lender makes any payment under any Letter of Credit issued by a court of competent jurisdiction, it and the respective Account Parties shall not create 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 relevant L/C Participant of such failure, and each such L/C Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such L/C Participant’s L/C Participation Percentage of such unreimbursed payment in the relevant Available Currency in same day funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day, any L/C Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the respective Issuing Lender in the relevant Available Currency such L/C Participant’s L/C Participation 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 L/C Participation Percentage of the amount of such payment available to the respective Issuing Lender, such L/C Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such Facing Agent 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 resulting liability such L/C Participant to make available to an Issuing Lender its L/C Participation Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not relieve any such other L/C Participant of its obligation hereunder to make available to such Issuing Lender its L/C Participation Percentage of any payment under any Letter of Credit on the date required, as specified above, but no such L/C Participant shall be responsible for the failure of any such other L/C Participant to make available to such Issuing Lender such other L/C Participant’s L/C Participation Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation (or interest thereon) as to which it has received any payments from the respective L/C Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such L/C Participant which has paid its L/C Participation Percentage thereof in the relevant Available Currency and in same day funds, an amount (net of any interest owing to such Issuing Lender with respect to such reimbursement obligation) equal to such L/C Participant’s share (based upon the proportionate aggregate amount originally funded by such L/C Participant to the aggregate amount funded by all such L/C Participants) of the principal amount of such reimbursement obligation and interest thereon (accruing after the funding of the respective participations) so received by the Issuing Lender.
(e) Upon the request of any L/C Participant, each Issuing Lender shall furnish to such L/C Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such L/C Participant.
(f) The obligations of the L/C Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and not subject to any Borrower 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 Lenderof the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which Aleris 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 L/C Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Aleris or any Subsidiary of Aleris 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
