Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. (ii) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank an amount equal to the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon (New York time), in Dollars, on (A) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 a.m. (New York time) or (B) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 a.m. (New York time). (iii) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank as required under Section 2.07(f)(ii) above and the Aggregate Maximum Credit Amounts have not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Revolving Credit Borrowing (which Borrowing may be subsequently converted at any time into a Eurodollar Borrowing pursuant to Section 2.03) in the principal amount equal to the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such Borrowing. (iv) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank as required under Section 2.07(f)(ii) above, and (A) the Aggregate Maximum Credit Amounts have been terminated (whether by maturity, acceleration or otherwise), or (B) any reimbursement received by the Issuing Bank from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit Borrowings. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent. (v) In the case of any Borrowing made under this Section 2.07(f), each such Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing set forth in Article II or Article VI, and, to the extent of the Borrowing so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) shall be deemed satisfied (unless, in each case, taking into account any such deemed Borrowings, the aggregate outstanding principal amount of Revolving Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment Amount). (vi) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations by payment to the Administrative Agent (for the benefit of the Issuing Bank) as required under this Section 2.07(f). The Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f). (vii) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date. (viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank shall be the sole issuer of Letters of Credit under this Agreement. (ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank to eliminate the Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 5 contracts
Samples: Credit Agreement (Callon Petroleum Co), Credit Agreement (Callon Petroleum Co), Credit Agreement (Callon Petroleum Co)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower (or other account party) is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York time (Detroit time) on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of the Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Base or the then applicable Revolving Credit Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Rocket Fuel Inc.), Revolving Credit and Term Loan Agreement (Rocket Fuel Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i2.4(c)(i) with in respect to of Revolving Credit BorrowingsAdvances. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of the Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Base or the then applicable Revolving Credit Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 2 contracts
Samples: Credit Agreement (Accolade, Inc.), Credit Agreement (Accolade, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York time (Detroit time) on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of the Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Base or the then applicable Revolving Credit Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Inogen Inc), Revolving Credit and Term Loan Agreement (Inogen Inc)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (i) By Upon issuance by the issuance Issuing Bank of a each Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lendershereunder, the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Applicable Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(ii) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank an amount equal to the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iii) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank as required under Section 2.07(f)(iiclause (ii) above and the Aggregate Maximum Credit Amounts have Commitment Amount has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Revolving Credit Borrowing (which Borrowing may be subsequently converted at any time into a Eurodollar Borrowing pursuant to Section 2.032.03 hereof) in the principal amount equal to the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such Borrowing.
(iv) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank as required under Section 2.07(f)(iiclause (ii) above, and (Ai) the Aggregate Maximum Credit Amounts have Amount has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(v) In the case of any Borrowing made under this Section 2.07(f), each such Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing set forth in Article II hereof or Article VIVII hereof, and, to the extent of the Borrowing so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) shall be deemed satisfied (unless, in each case, taking into account any such deemed Borrowings, the aggregate outstanding principal amount of Revolving Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, Base or the then applicable Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment Amount).
(vi) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations by payment to the Administrative Agent (for the benefit of the Issuing Bank) as required under this Section 2.07(f). The Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f).
(vii) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank shall be the sole issuer of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank to eliminate the Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 2 contracts
Samples: Credit Agreement (RSP Permian, Inc.), Credit Agreement (RSP Permian, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (i1) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(ii2) If the Issuing Bank Lender shall honor honour a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Toronto time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honorhonour, if such notice is received prior to 10:00 11:00 a.m. (New York Toronto time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Toronto time).
(iii3) If the Issuing Bank Lender shall honor honour a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(ii3.7(2) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR US Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.4 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(iv4) If the Issuing Bank Lender shall honor honour a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(ii3.7(2) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy bankruptcy, reorganization or reorganization similar process of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time 11:00 a.m. (Toronto time) on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(v5) In the case of any Borrowing Advance made under this Section 2.07(f3.7(3), each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI4 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of the Borrower to the Administrative Agent under this Section 2.07(f3.7(3) shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) Advance), plus the Hedging Obligations on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vi6) If the Issuing Bank Lender shall honor honour a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honoredhonoured, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.7. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring honouring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.7.
(vii7) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by the extension Agent or issuance datesuch Lender or until the requisite Lenders have waived such Default or Event of Default in accordance with the terms of this Agreement.
(viii) 8) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ix9) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Dragonwave Inc), Revolving Credit Agreement (Dragonwave Inc)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i2.4(c)(i) with in respect to of Revolving Credit BorrowingsAdvances. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of the Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Base or the then applicable Revolving Credit Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide written notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide written notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by the extension Agent or issuance datesuch Lender or until the requisite Lenders have waived such Default or Event of Default in accordance with the terms of this Agreement.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements reasonably satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including reallocation in accordance with Section 10.4(f) hereof, or, if such reallocation is not possible, creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (GLAUKOS Corp), Revolving Credit and Term Loan Agreement (GLAUKOS Corp)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each [Existing]existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing [Eurodollar-based]BSBY Rate Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i2.4(c)(i) with in respect to of Revolving Credit BorrowingsAdvances. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of the Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Montauk Renewables, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the any Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each Letter of Credit Payment made by the such Issuing Bank and not reimbursed by the Borrower on the date due as provided in clause paragraph (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(ii) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the such Issuing Bank an amount equal to the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York time).
(iii) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank as required under Section 2.07(f)(ii) above and the Aggregate Maximum Credit Amounts have Amount has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Revolving Credit Borrowing (which Borrowing may be subsequently converted at any time into a Eurodollar Term Benchmark Revolving Credit Borrowing pursuant to Section 2.032.03 hereof) in the principal amount equal to the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such Borrowing.
(iv) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank as required under Section 2.07(f)(ii) above), and (Ai) the Aggregate Maximum Credit Amounts have Amount has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the such Issuing Bank from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the such Issuing Bank its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit Borrowings. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(v) In the case of any Borrowing made under this Section 2.07(f), each such Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing set forth in this Article II or Article VI, and, to the extent of the Borrowing so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) shall be deemed satisfied (unless, in each case, taking into account any such deemed Borrowings, the aggregate outstanding principal amount of Revolving Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment Amountaggregate Revolving Commitments).
(vi) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the such Issuing Bank shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations by payment to the Administrative Agent (for the benefit of the such Issuing Bank) as required under this Section 2.07(f). The Each Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the any Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f).
(vii) Notwithstanding the foregoing foregoing, however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the applicable Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Banks shall be the sole issuer issuers of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the any Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the such Issuing Bank to eliminate the such Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Credit Agreement (PDC Energy, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower Borrowers received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower Borrowers received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower Borrowers is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower Borrowers hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time a.m. (Pacific) on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI6 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower Borrowers to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Base or the then applicable Revolving Credit Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower Borrowers on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower Borrowers shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower Borrowers prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower Borrowers under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by Agent or such Lender or until the extension requisite Lenders have waived such Default or issuance dateEvent of Default in accordance with the terms of this Agreement.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower Borrowers enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit 's Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Credit Agreement (National Technical Systems Inc /Ca/)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York timeP.S.T.), in Dollars, on (Ai) the Business Day that the Borrower Borrowers received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York timeP.S.T.) or (Bii) the Business Day immediately following the day that the Borrower Borrowers received such notice, if such notice is received after 10:00 11:00 a.m. (New York timeP.S.T.).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower Borrowers is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Credit
(e) Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower Borrowers hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York time P.S.T. on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(vf) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower Borrowers to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and Swing Line LoansCredit, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vig) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower Borrowers on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower Borrowers shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower Borrowers prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower Borrowers under this Section 2.07(f)3.6.
(viih) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as of the extension or issuance date.Issuing
(viiii) Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by Agent or such Lender or until the requisite Lenders have waived such Default or Event of Default in accordance with the terms of this Agreement. Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank to eliminate the Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit Agreement (Obagi Medical Products, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon p.m. (New York San Diego, California time), in Dollars, on (Ai) the Business Day that the Borrower Borrowers received notice of such presentment and honor, if such notice is received prior to 10:00 a.m. (New York San Diego, California time) or (Bii) the Business Day immediately following the day that the Borrower Borrowers received such notice, if such notice is received after 10:00 a.m. (New York San Diego, California time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower Borrowers is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower Borrowers hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 8:00 am New York San Diego, California time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower the Borrowers to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower Borrowers on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower Borrowers shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower Borrowers prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower Borrowers under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by the extension Agent or issuance datesuch Lender or until the requisite Lenders have waived such Default or Event of Default in accordance with the terms of this Agreement.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower Borrowers enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit 's Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit Agreement (Bridgepoint Education Inc)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lendershereunder, the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit, Michigan time), in Dollars, on (Ai) the Business Day that the Borrower Borrowers received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit, Michigan time) or (Bii) the Business Day immediately following the day that the Borrower Borrowers received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit, Michigan time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower Borrowers is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower Borrowers hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time 11:00 a.m. (Detroit, Michigan time) on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower the Borrowers to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower Borrowers on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower Borrowers shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower Borrowers prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower Borrowers under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower Borrowers enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (RetailMeNot, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR an Advance of the Revolving Credit Borrowing (which Borrowing may be subsequently converted at any time into a Eurodollar Borrowing pursuant to Section 2.03) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Intcomex, Borrower or any of its Subsidiaries Subsidiary or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date date, plus the Foreign A/R Insurance Reserve, exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Borrowing Base or the then applicable Revolving Credit Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by Agent or such Lender or until the extension requisite Lenders have waived such Default or issuance dateEvent of Default in accordance with the terms of this Agreement.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting an Impaired Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing BankLender’s risk with respect to the participation in Letters of Credit by such Defaulting Impaired Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Impaired Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the any Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each Letter of Credit Payment made by the such Issuing Bank and not reimbursed by the Borrower on the date due as provided in clause paragraph (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(ii) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the such Issuing Bank an amount equal to the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York time).
(iii) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank as required under Section 2.07(f)(ii) above and the Aggregate Maximum Credit Amounts have Commitment Amount has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Revolving Credit Borrowing (which Borrowing may be subsequently converted at any time into a Eurodollar Term Benchmark Borrowing pursuant to Section 2.032.03 hereof) in the principal amount equal to the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such Borrowing.
(iv) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank as required under Section 2.07(f)(ii) above), and (Ai) the Aggregate Maximum Credit Amounts have Amount has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the such Issuing Bank from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the such Issuing Bank its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit Borrowings. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(v) In the case of any Borrowing made under this Section 2.07(f), each such Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing set forth in this Article II or Article VI, and, to the extent of the Borrowing so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) shall be deemed satisfied (unless, in each case, taking into account any such deemed Borrowings, the aggregate outstanding principal amount of Revolving Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment Amountaggregate Commitments).
(vi) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the such Issuing Bank shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations by payment to the Administrative Agent (for the benefit of the such Issuing Bank) as required under this Section 2.07(f). The Each Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the any Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f).
(vii) Notwithstanding the foregoing foregoing, however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the applicable Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Banks shall be the sole issuer issuers of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the any Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the such Issuing Bank to eliminate the such Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Credit Agreement (PDC Energy, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower Borrowers received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower Borrowers received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is Borrowers (or other account party) are or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower Borrowers hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i2.4(c)(i) with in respect to of Revolving Credit BorrowingsAdvances. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower the Borrowers to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower Borrowers on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower Borrowers shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower Borrowers prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower Borrowers under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower Borrowers enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Credit Agreement (Bazaarvoice Inc)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower Borrowers received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower Borrowers received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Term SOFR Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower Borrowers is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower Borrowers hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i2.4(c)(i) with in respect to of Revolving Credit BorrowingsAdvances. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower the Borrowers to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Base or the then applicable Revolving Credit Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower Borrowers on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower Borrowers shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower Borrowers prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower Borrowers under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower Borrowers enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit 's Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By the Upon issuance by an Issuing Lender of a each Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lendershereunder, the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the any Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the such Issuing Bank Lender an amount equal to the amount paid by the such Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York time).
(iiic) If the any Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3) in the principal amount equal to the amount paid by such Issuing Lender in respect of such draft or other demand under such Letter of Credit and all reasonable
(d) If any Issuing Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but Borrower does not reimburse such Issuing Lender as required under clause (b) above, and (i) the Revolving Credit Aggregate Commitment has been terminated (whether by maturity, acceleration or otherwise), or (ii) any reimbursement received by such Issuing Bank Lender from Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of any Credit Party or otherwise, then Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay Administrative Agent for the account of such Issuing Lender its pro rata share (based on its Revolving Credit Percentage) of the amount paid by such Issuing Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such Borrowing.
(iv) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank as required under Section 2.07(f)(ii) above, and (A) the Aggregate Maximum Credit Amounts have been terminated (whether by maturity, acceleration or otherwise), or (B) any reimbursement received by the Issuing Bank from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am 11:00 a.m. (New York time time) on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 or Article VI5, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Revolving Aggregate Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, Exposure exceeds the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the any Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Such Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Such Issuing BankLender) as required under this Section 2.07(f). The Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.
(vii) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank shall be the sole issuer of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank to eliminate the Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Pacific time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Pacific time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Pacific time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York 11:00 a.m. Pacific time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by Agent or such Lender or until the extension requisite Lenders have waived such Default or issuance dateEvent of Default in accordance with the terms of this Agreement.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Quinstreet, Inc)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Base or the then applicable Revolving Credit Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by Agent or such Lender or until the extension requisite Lenders have waived such Default or issuance dateEvent of Default in accordance with the terms of this Agreement.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (LINC Logistics Co)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Letter of Credit increasing the amount thereof) and without any further action existing on the part date of the Issuing Bank or the Lendersthis Agreement), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of the Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Borrowing Base or Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by the extension Agent or issuance datesuch Lender or until the requisite Lenders have waived such Default or Event of Default in accordance with the terms of this Agreement.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Neophotonics Corp)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By the Upon issuance by Issuing Lender of a each Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lendershereunder, the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 or Article VI5, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Revolving Aggregate Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, Exposure exceeds the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(vii) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiig) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixh) In the event that any Revolving Credit Lender becomes a Defaulting Lender, and the reallocation of Fronting Exposure pursuant to Section 10.4 cannot be achieved, Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms reasonably satisfactory to Administrative Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lendershereunder, the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit, Michigan time), in Dollars, on (Ai) the Business Day that the Borrower Borrowers received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit, Michigan time) or (Bii) the Business Day immediately following the day that the Borrower Borrowers received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit, Michigan time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower Borrowers is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower Borrowers hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit Borrowings. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(v) In the case of any Borrowing made under this Section 2.07(f), each such Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing set forth in Article II or Article VI, and, to the extent of the Borrowing so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) shall be deemed satisfied (unless, in each case, taking into account any such deemed Borrowings, the aggregate outstanding principal amount of Revolving Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment Amount).
(vi) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations by payment to the Administrative Agent (for the benefit of the Issuing Bank) as required under this Section 2.07(f). The Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f).
(vii) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank shall be the sole issuer of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank to eliminate the Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.the
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (RetailMeNot, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 or Article VI5, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Base or the then applicable Revolving Credit Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender and Borrower to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent and Borrower or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Credit Agreement (Universal Truckload Services, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower Borrowers received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower Borrowers received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(iv) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank as required under Section 2.07(f)(ii) above, and (A) the Aggregate Maximum Credit Amounts have been terminated (whether by maturity, acceleration or otherwise), or (B) any reimbursement received by the Issuing Bank from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit Borrowings. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(v) In the case of any Borrowing made under this Section 2.07(f), each such Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing set forth in Article II or Article VI, and, to the extent of the Borrowing so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) shall be deemed satisfied (unless, in each case, taking into account any such deemed Borrowings, the aggregate outstanding principal amount of Revolving Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment Amount).
(vi) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations by payment to the Administrative Agent (for the benefit of the Issuing Bank) as required under this Section 2.07(f). The Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f).
(vii) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank shall be the sole issuer of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank to eliminate the Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Archaea Energy Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Pacific time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Pacific time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Pacific time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York 11:00 a.m. Pacific time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by Agent or such Lender or until the extension requisite Lenders have waived such Default or issuance dateEvent of Default in accordance with the terms of this Agreement.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting an Impaired Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing BankLender’s risk with respect to the participation in Letters of Credit by such Defaulting Impaired Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Impaired Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Quinstreet, Inc)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the any Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each Letter of Credit Payment made by the such Issuing Bank and not reimbursed by the Borrower on the date due as provided in clause paragraph (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(ii) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the such Issuing Bank an amount equal to the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York time).
(iii) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank as required under Section 2.07(f)(ii) above and the Aggregate Maximum Credit Amounts have Commitment Amount has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Revolving Credit Borrowing (which Borrowing may be subsequently converted at any time into a Eurodollar Borrowing pursuant to Section 2.032.03 hereof) in the principal amount equal to the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such Borrowing.
(iv) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank as required under Section 2.07(f)(ii) above), and (Ai) the Aggregate Maximum Credit Amounts have Amount has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the such Issuing Bank from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the such Issuing Bank its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit Borrowings. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(v) In the case of any Borrowing made under this Section 2.07(f), each such Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing set forth in Article II hereof or Article VI, and, to the extent of the Borrowing so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) shall be deemed satisfied (unless, in each case, taking into account any such deemed Borrowings, the aggregate outstanding principal amount of Revolving Credit Borrowings and Swing Line LoansBorrowings, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser least of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Amount or the then applicable Aggregate Elected Commitment AmountLoan Limit).
(vi) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the such Issuing Bank shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations by payment to the Administrative Agent (for the benefit of the such Issuing Bank) as required under this Section 2.07(f). The Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f).
(vii) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank shall be the sole issuer of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank to eliminate the Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.this
Appears in 1 contract
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By the Upon issuance by an Issuing Lender of a each Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lendershereunder, the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the any Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the such Issuing Bank Lender an amount equal to the amount paid by the such Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York time).
(iiic) If the any Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a an ABR Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing SOFR Advance pursuant to Section 2.032.3) in the principal amount equal to the amount paid by the such Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the any Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the such Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the such Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the such Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am 11:00 a.m2:00 p.m. (New York time time) on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender MRC Energy Company Credit Agreement 69 shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 or Article VI5, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Aggregate Revolving Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, Exposure exceeds the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the any Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Suchsuch Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Suchsuch Issuing BankLender) as required under this Section 2.07(f)3.6. The Each Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the such Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(vii) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiig) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lenders shall be the sole issuer of Letters of Credit under this Agreement.
(ixh) In the event that any Revolving Credit Lender becomes a Defaulting Lender, and the reallocation of Fronting Exposure pursuant to Section 10.4 cannot be achieved, each Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the such Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms reasonably satisfactory to Administrative Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.. MRC Energy Company Credit Agreement 70
Appears in 1 contract
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit, Michigan time), in Dollars, on (Ai) the Business Day that the Administrative Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit, Michigan time) or (Bii) the Business Day immediately following the day that the Administrative Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit, Michigan time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower Borrowers is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower Borrowers hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York time (Detroit, Michigan time) on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower the Borrowers to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Administrative Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower Borrowers shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Administrative Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower Borrowers under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting an Impaired Lender, the Issuing Bank Lender may, at its option, require that the Borrower Borrowers enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing BankLender’s risk with respect to the participation in Letters of Credit by such Defaulting Impaired Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Impaired Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving and Term Loan Credit Agreement (American Midstream Partners, LP)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower Borrowers received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower Borrowers received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-basedTerm SOFR Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower Borrowers is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower Borrowers hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i2.4(c)(i) with in respect to of Revolving Credit BorrowingsAdvances. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower the Borrowers to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Base or the then applicable Revolving Credit Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower Borrowers on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower Borrowers shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower Borrowers prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower Borrowers under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower Borrowers enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Archaea Energy Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower Borrowers received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower Borrowers received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing BSBY Rate Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower Borrowers is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower Borrowers hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i2.4(c)(i) with in respect to of Revolving Credit BorrowingsAdvances. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II Section 2 hereof or Article VISection 5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower the Borrowers to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower Borrowers on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower Borrowers shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower Borrowers prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower Borrowers under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by the extension Agent or issuance datesuch Lender or until the requisite Lenders have waived such Default or Event of Default in accordance with the terms of this Agreement.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower Borrowers enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit 's Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Credit Agreement (Warby Parker Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Base or the then applicable Revolving Credit Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to Issuing Lender and the Issuing Bank Borrower to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent and the Borrower or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit 's Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Universal Truckload Services, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of the Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Base or the then applicable Revolving Credit Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By the Upon issuance by an Issuing Lender of a each Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lendershereunder, the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the any Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the such Issuing Bank Lender an amount equal to the amount paid by the such Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York time).
(iiic) If the any Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a an ABR Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing SOFR Advance pursuant to Section 2.032.3) in the principal amount equal to the amount paid by the such Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such Borrowing.Advance. MRC Energy Company Credit Agreement 68
(ivd) If the any Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the such Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the such Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the such Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am 2:00 p.m. (New York time time) on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 or Article VI5, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Aggregate Revolving Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, Exposure exceeds the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the any Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the such Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the such Issuing BankLender) as required under this Section 2.07(f)3.6. The Each Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the such Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f).3.6. MRC Energy Company Credit Agreement 69
(vii) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiig) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lenders shall be the sole issuer of Letters of Credit under this Agreement.
(ixh) In the event that any Revolving Credit Lender becomes a Defaulting Lender, and the reallocation of Fronting Exposure pursuant to Section 10.4 cannot be achieved, each Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the such Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms reasonably satisfactory to Administrative Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the any Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each Letter of Credit Payment made by the such Issuing Bank and not reimbursed by the Borrower on the date due as provided in clause paragraph (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(ii) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the such Issuing Bank an amount equal to the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York time).
(iii) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank as required under Section 2.07(f)(ii) above and the Aggregate Maximum Credit Amounts have Commitment Amount has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Revolving Credit Borrowing (which Borrowing may be subsequently converted at any time into a Eurodollar Borrowing pursuant to Section 2.03) in the principal amount equal to the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such Borrowing.
(iv) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank as required under Section 2.07(f)(ii) above, and (A) the Aggregate Maximum Credit Amounts have been terminated (whether by maturity, acceleration or otherwise), or (B) any reimbursement received by the Issuing Bank from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit Borrowings. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(v) In the case of any Borrowing made under this Section 2.07(f), each such Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing set forth in Article II or Article VI, and, to the extent of the Borrowing so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) shall be deemed satisfied (unless, in each case, taking into account any such deemed Borrowings, the aggregate outstanding principal amount of Revolving Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment Amount).
(vi) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations by payment to the Administrative Agent (for the benefit of the Issuing Bank) as required under this Section 2.07(f). The Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f).
(vii) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank shall be the sole issuer of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank to eliminate the Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.Section
Appears in 1 contract
Samples: Credit Agreement (PDC Energy, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By the Upon issuance by Issuing Lender of a each Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lendershereunder, the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be MRC Energy Company Credit Agreement subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am 11:00 a.m. (New York time time) on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 or Article VI5, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Revolving Aggregate Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, Exposure exceeds the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f).3.6. MRC Energy Company Credit Agreement
(vii) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiig) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixh) In the event that any Revolving Credit Lender becomes a Defaulting Lender, and the reallocation of Fronting Exposure pursuant to Section 10.4 cannot be achieved, Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms reasonably satisfactory to Administrative Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Pacific time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Pacific time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Pacific time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Prime-based Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York 11:00 a.m. Pacific time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by Agent or such Lender or until the extension requisite Lenders have waived such Default or issuance dateEvent of Default in accordance with the terms of this Agreement.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank to eliminate the Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Quinstreet, Inc)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the any Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Lxxxxx's Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Lxxxxx's Applicable Revolving Credit Percentage of each Letter of Credit Payment made by the such Issuing Bank and not reimbursed by the Borrower on the date due as provided in clause paragraph (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(ii) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the such Issuing Bank an amount equal to the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York time).
(iii) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank as required under Section 2.07(f)(ii) above and the Aggregate Maximum Credit Amounts have Amount has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Revolving Credit Borrowing (which Borrowing may be subsequently converted at any time into a Eurodollar Term Benchmark Borrowing pursuant to Section 2.032.03 hereof) in the principal amount equal to the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such Borrowing.
(iv) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank as required under Section 2.07(f)(ii) above), and (Ai) the Aggregate Maximum Credit Amounts have Amount has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the such Issuing Bank from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the such Issuing Bank its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit Borrowings. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(v) In the case of any Borrowing made under this Section 2.07(f), each such Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing set forth in Article II hereof or Article VI, and, to the extent of the Borrowing so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) shall be deemed satisfied (unless, in each case, taking into account any such deemed Borrowings, the aggregate outstanding principal amount of Revolving Credit Borrowings and Swing Line LoansBorrowings, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser least of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Amount or the then applicable Aggregate Elected Commitment AmountLoan Limit).
(vi) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the such Issuing Bank shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations by payment to the Administrative Agent (for the benefit of the such Issuing Bank) as required under this Section 2.07(f). The Each Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the any Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f).
(vii) Notwithstanding the foregoing foregoing, however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the applicable Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Banks shall be the sole issuer issuers of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the any Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the such Issuing Bank to eliminate the such Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such LenderXxxxxx’s Applicable Revolving Credit Percentage of each Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(ii) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank an amount equal to the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon (New York time), in Dollars, on (A) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 a.m. (New York time) or (B) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 a.m. (New York time).
(iii) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank as required under Section 2.07(f)(ii) above and the Aggregate Maximum Credit Amounts Commitments have not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Revolving Credit Borrowing (which Borrowing may be subsequently converted at any time into a Eurodollar Term Benchmark Borrowing or RFR Borrowing pursuant to Section 2.03) in the principal amount equal to the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such Borrowing.
(iv) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank as required under Section 2.07(f)(ii) above, and (A) the Aggregate Maximum Credit Amounts Commitments have been terminated (whether by maturity, acceleration or otherwise), or (B) any reimbursement received by the Issuing Bank from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit Borrowings. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(v) In the case of any Borrowing made under this Section 2.07(f), each such Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing set forth in Article II or Article VI, and, to the extent of the Borrowing so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) shall be deemed satisfied (unless, in each case, taking into account any such deemed Borrowings, the aggregate outstanding principal amount of Revolving Credit Borrowings and Swing Line Loans, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment Amount).
(vi) If the Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations by payment to the Administrative Agent (for the benefit of the Issuing Bank) as required under this Section 2.07(f). The Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f).
(vii) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank shall be the sole issuer of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank to eliminate the Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York California time), in Dollars, on (Ai) the Business Day that the Borrower Borrowers received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York California time) or (Bii) the Business Day immediately following the day that the Borrower Borrowers received such notice, if such notice is received after 10:00 11:00 a.m. (New York California time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Prime Referenced Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower Borrowers is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower Borrowers hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York time (California time) on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower Borrowers to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and Swing Line LoansCredit, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower Borrowers on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower Borrowers shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower Borrowers prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower Borrowers under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing foregoing, however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by Agent or such Lender or until the extension requisite Lenders have waived such Default or issuance date.
(viii) Event of Default in accordance with the terms of this Agreement. Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank to eliminate the Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Obagi Medical Products, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees Borrowers agree to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower Borrowers received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower Borrowers received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower Borrowers shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does Borrowers do not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower Borrowers is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower Borrowers hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit BorrowingsFederal Funds Effective Rate. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 or Article VI5, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of Borrower Borrowers to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower Borrowers on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower Borrowers shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower Borrowers prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower Borrowers under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable. In the event that the Issuing Lender receives such a notice, but effective as the Issuing Lender shall have no obligation to issue any Letter of Credit until such notice is withdrawn by Agent or such Lender or until the extension requisite Lenders have waived such Default or issuance dateEvent of Default in accordance with the terms of this Agreement.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower Borrowers enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit 's Percentage of all outstanding Letter of Credit Obligations.
Appears in 1 contract
Samples: Credit Agreement (Multimedia Games Holding Company, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (ia) By Upon issuance by the issuance Issuing Lender of a each Letter of Credit hereunder (or an amendment and on the Effective Date with respect to a each Existing Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the LendersCredit), the Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Bank, shall automatically acquire a pro rata participation interest in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each related Letter of Credit Payment made by the Issuing Bank and not reimbursed by the Borrower based on the date due as provided in clause (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each its respective Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverPercentage.
(iib) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the Issuing Bank Lender an amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon 1:00 p.m. (New York Detroit time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 11:00 a.m. (New York Detroit time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 11:00 a.m. (New York Detroit time).
(iiic) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above and the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Base Rate Advance of the Revolving Credit Borrowing (which Borrowing Advance may be subsequently converted at any time into a Eurodollar Borrowing Eurodollar-based Advance pursuant to Section 2.032.3 hereof) in the principal amount equal to the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such BorrowingAdvance.
(ivd) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the Issuing Bank Lender as required under Section 2.07(f)(iiclause (b) above, and (Ai) the Revolving Credit Aggregate Maximum Credit Amounts have Commitment has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the Issuing Bank Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries Credit Party or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the Issuing Bank Lender its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the Issuing Bank Lender in respect of such draft or other demand under such Letter of Credit and all reasonable and invoiced out-of-pocket expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 11:00 am New York Detroit time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i2.4(c)(i) with in respect to of Revolving Credit BorrowingsAdvances. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(ve) In the case of any Borrowing Advance made under this Section 2.07(f)3.6, each such Borrowing Advance shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing Advance set forth in Article II 2 hereof or Article VI5 hereof, and, to the extent of the Borrowing Advance so disbursed, the Reimbursement Obligation of the Borrower to the Administrative Agent under this Section 2.07(f) 3.6 shall be deemed satisfied (unless, in each case, taking into account any such deemed BorrowingsAdvances, the aggregate outstanding principal amount of Advances of the Revolving Credit Borrowings and the Swing Line LoansLine, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this BorrowingAdvance) on such date exceed the lesser of the Borrowing Base, the then applicable Revolving Credit Aggregate Maximum Credit Amounts or the then applicable Aggregate Elected Commitment AmountCommitment).
(vif) If the Issuing Bank Lender shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Issuing Bank Lender shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations reimbursement obligations by payment to the Administrative Agent (for the benefit of the Issuing BankLender) as required under this Section 2.07(f)3.6. The Issuing Bank Lender shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the Issuing Bank Lender with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f)3.6.
(viig) Notwithstanding the foregoing however, however no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the Issuing Bank Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, however that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viiih) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Lender shall be the sole issuer of Letters of Credit under this Agreement.
(ixi) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the Issuing Bank Lender may, at its option, require that the Borrower enter into arrangements satisfactory to the Issuing Bank Lender to eliminate the Issuing Bank’s risk Fronting Exposure with respect to the participation in Letters the Letter of Credit Obligations by such Defaulting Lender, including creation of a cash collateral account on terms satisfactory to the Agent or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
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Samples: Revolving Credit and Term Loan Agreement (Montauk Renewables, Inc.)
Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the any Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such LenderLxxxxx’s Applicable Revolving Credit Percentage of each Letter of Credit Payment made by the such Issuing Bank and not reimbursed by the Borrower on the date due as provided in clause paragraph (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(ii) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the such Issuing Bank an amount equal to the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 noon p.m. (New York time), in Dollars, on (Ai) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 a.m. (New York time) or (Bii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 a.m. (New York time).
(iii) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank as required under Section 2.07(f)(ii) above and the Aggregate Maximum Credit Amounts have Amount has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Revolving Credit Borrowing (which Borrowing may be subsequently converted at any time into a Eurodollar Term Benchmark Borrowing pursuant to Section 2.032.03 hereof) in the principal amount equal to the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such Borrowing.
(iv) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the such Issuing Bank as required under Section 2.07(f)(ii) above), and (Ai) the Aggregate Maximum Credit Amounts have Amount has been terminated (whether by maturity, acceleration or otherwise), or (Bii) any reimbursement received by the such Issuing Bank from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of the such Issuing Bank its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by the such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit Borrowings. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent.
(v) In the case of any Borrowing made under this Section 2.07(f), each such Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing set forth in Article II hereof or Article VI, and, to the extent of the Borrowing so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) shall be deemed satisfied (unless, in each case, taking into account any such deemed Borrowings, the aggregate outstanding principal amount of Revolving Credit Borrowings and Swing Line LoansBorrowings, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the lesser least of the Borrowing Base, the then applicable Aggregate Maximum Credit Amounts Amount or the then applicable Aggregate Elected Commitment AmountLoan Limit).
(vi) If the any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the such Issuing Bank shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations by payment to the Administrative Agent (for the benefit of the such Issuing Bank) as required under this Section 2.07(f). The Each Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of the any Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f).
(vii) Notwithstanding the foregoing foregoing, however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the applicable Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date.
(viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Bank Banks shall be the sole issuer issuers of Letters of Credit under this Agreement.
(ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, the any Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to the such Issuing Bank to eliminate the such Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations.
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