Special Provisions Applicable to Lenders Upon the Occurrence of a Sharing Event. (a) On the date of the occurrence of any Sharing Event, or promptly thereafter, (i) if there have been any Drawings pursuant to Letters of Credit which have not yet been reimbursed to the respective Issuing Lender pursuant to Section 2A, the respective Issuing Lender shall seek reimbursement therefor as permitted pursuant to Section 2A.04(c) and (ii) if there have been any Bank Guaranty Payments pursuant to Bank Guaranties which have not yet been reimbursed to the respective Bank Guaranty Issuer pursuant to Section 2B, the respective Bank Guaranty Issuer shall seek reimbursement therefor as permitted pursuant to Section 2B.04(c)). After giving effect to the actions taken (or required to be taken) pursuant to the preceding sentence, the Administrative Agent shall request that the Deposit Bank return (in which case the Deposit Bank shall return) to the Administrative Agent who shall, in turn, return to the CL Lenders amounts (if any) representing Credit-Linked Deposits which are permitted to be returned to the CL Lenders at such time in accordance with Section 2C.04(a) hereof. (i) Upon the occurrence of a Sharing Event, but after giving effect to the actions required to be taken pursuant to preceding clause (a) of this Section 1.14 (although any failure by the Administrative Agent, the Deposit Bank or any Lender to take the actions required of it pursuant to said clause shall not prevent the actions required hereby, but the respective Administrative Agent, Deposit Bank or Lender shall continue to be obligated to perform its obligations as required above and the Administrative Agent shall be authorized to make any equitable adjustments as may be deemed necessary or desirable pursuant to the provisions of this Section 1.14(b)), the Lenders shall purchase participations from other Lenders in each of the respective Tranches of Loans and the CL Tranche (including, in the case of the CL Tranche, participations in each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing to the CL Lenders and the Credit-Linked Deposits of the various CL Lenders) so that, after giving effect to such purchases, each Lender shall have the same credit exposure in each Tranche at such time (including, (x) in the case of the Total Credit-Linked Commitment, an interest in each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing to the CL Lenders and the Credit-Linked Deposits of the various CL Lenders and (y) a participation in the Credit-Linked Deposits established pursuant to Section 2C.01 and all amounts deposited in the Credit-Linked Deposit Account from time to time or to be returned to the Lenders in accordance with the provisions of Section 2), whether or not such Lender shall previously have participated therein, equal to such Lender’s Exchange Percentage thereof. (ii) The foregoing actions pursuant to immediately preceding clause (i) shall be accomplished pursuant to this Section 1.14(b) through purchases and sales of participations in the various Tranches as required hereby, and at the request of the Administrative Agent each Lender hereby agrees to enter into customary participation agreements approved by the Administrative Agent to evidence same. All purchases and sales of participations pursuant to this Section 1.14(b) shall be made in Dollars. Without limiting the foregoing, it is understood and agreed that, pursuant to this Section 1.14(b), the various CL Lenders may be selling participations to the other Lenders in their Credit-Linked Deposits (after giving effect to the actions required on, or promptly following, the occurrence of the Sharing Event pursuant to Section 1.14(a)), and in connection therewith each CL Lender shall be paid, in immediately available funds in Dollars, amounts equal to the percentage participations sold by them in their Credit-Linked Deposits, which immediately available funds shall be paid by the Lenders acquiring participations therein. At the request of the Administrative Agent, each Lender which has sold participations in any of its Tranches as provided above (through the Administrative Agent) will deliver to each Lender (through the Administrative Agent) which has so purchased a participation therein a participation certificate in the appropriate amount as determined in conjunction with the Administrative Agent. It is understood that the amount of immediately available funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required above. (c) In the event that any Lender shall default on its obligation to pay over any amount to the Administrative Agent in respect of any Letter of Credit or any Bank Guaranty as provided in Section 1.14(b), each other Lender shall have a claim against such defaulting Lender (and not against the Administrative Agent, any Issuing Lender, any Bank Guaranty Issuer, the Deposit Bank or any other Lender) for any damages sustained by it as a result of such default. (d) All determinations by the Administrative Agent pursuant to this Section 1.14 shall be made by it in accordance with the provisions herein and with the intent being to equitably share the credit risk for all Tranches (and the Credit-Linked Deposits) hereunder in accordance with the provisions hereof. Absent manifest error, all determinations by the Administrative Agent hereunder shall be binding on the Borrowers, each of the Lenders, each Issuing Lender, each Bank Guaranty Issuer and the Deposit Bank. The Administrative Agent shall have no liability to either Borrower, any Lender, any Issuing Bank, any Bank Guaranty Issuer or the Deposit Bank for any determinations made by it hereunder except to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). (e) Upon, and after, the occurrence of a Sharing Event (i) no further Credit Events shall be made or occur, and (ii) all Credit-Linked Commitments and all Incremental Term Loan Commitments (if any) shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interests as required above in any extensions of credit (and/or any Credit-Linked Deposits) upon the occurrence of a Sharing Event shall not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date. (f) If any amount required to be paid by any Lender pursuant to this Section 1.14 is not paid to the Administrative Agent on the date upon which the Sharing Event occurred, such Lender shall, in addition to such aforementioned amount, also pay to the Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Lender for the purchase of its participations, (ii) the daily average Federal Funds Rate, during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent and (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable under this Section 1.14 shall be conclusive in the absence of manifest error. Amounts payable by any Lender pursuant to this Section 1.14 shall be paid to the Administrative Agent for the account of the relevant Lenders, provided that, if the Administrative Agent (in its sole discretion) has elected to fund on behalf of such other Lender the amounts owing to such other Lenders, then the amounts shall be paid to the Administrative Agent for its own account. (g) Whenever, at any time after the relevant Lenders have received from any other Lenders purchases of participations pursuant to this Section 1.14, the various Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received, provided, however, that in the event that such payment received by any Lenders is required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders. (h) Each Lender’s obligation to purchase participating interests pursuant to this Section 1.14 shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any Credit Agreement Party or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the condition (financial or otherwise) or prospects of any Credit Agreement Party or any other Person, (iv) any breach of this Agreement or any other Credit Document by any Credit Agreement Party, any Lender, any Issuing Lender, any Bank Guaranty Issuer, any Agent, the Deposit Bank or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. (i) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, (i) the relevant Borrower shall pay to each Lender granting any participations as required above, for the account of the respective Lender which has purchased such participations, any increased costs and indemnities (including, without limitation, pursuant to Sections 1.11, 1.12, 2A.06, 2B.06 and 4.04) to the same extent as if such Lender which has purchased such participations were the direct Lender as opposed to a participant therein, which increased costs shall be calculated without regard to Section 1.13, Section 13.04(a) or the penultimate sentence of Section 13.04(b) and (ii) each Lender which has sold such participations shall be entitled to receive from the relevant Borrower indemnification from and against any and all taxes imposed as a result of the sale of the participations pursuant to this Section 1.
Appears in 4 contracts
Samples: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)
Special Provisions Applicable to Lenders Upon the Occurrence of a Sharing Event. (a) On the date of the occurrence of any Sharing Event, or promptly thereafter, (i) if there have been any Drawings pursuant to Letters of Credit which have not yet been reimbursed to the respective Issuing Lender pursuant to Section 2A, the respective Issuing Lender shall seek reimbursement therefor as permitted pursuant to Section 2A.04(c) and (ii) if there have been any Bank Guaranty Payments pursuant to Bank Guaranties which have not yet been reimbursed to the respective Bank Guaranty Issuer pursuant to Section 2B, the respective Bank Guaranty Issuer shall seek reimbursement therefor as permitted pursuant to Section 2B.04(c)). After giving effect to the actions taken (or required to be taken) pursuant to the preceding sentence, the Administrative Agent shall request that the Deposit Bank return (in which case the Deposit Bank shall return) to the Administrative Agent who shall, in turn, return to the CL Lenders amounts (if any) representing Credit-Linked Deposits which are permitted to be returned to the CL Lenders at such time in accordance with Section 2C.04(a) hereof[Reserved].
(i) Upon the occurrence of a Sharing Event, but after giving effect to the actions required to be taken pursuant to preceding clause (a) of this Section 1.14 (although any failure by the Administrative Agent, the Deposit Bank or any Lender to take the actions required of it pursuant to said clause shall not prevent the actions required hereby, but the respective Administrative Agent, Deposit Bank or Lender shall continue to be obligated to perform its obligations as required above and the Administrative Agent shall be authorized to make any equitable adjustments as may be deemed necessary or desirable pursuant to the provisions of this Section 1.14(b)), the Lenders shall purchase participations from other Lenders in each of the respective Tranches of Loans and the CL Tranche (including, in the case of the CL Tranche, participations in each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing to the CL Lenders and the Credit-Linked Deposits of the various CL Lenders) so that, after giving effect to such purchases, each Lender shall have the same credit exposure in each Tranche at such time (including, (x) in the case of the Total Credit-Linked Commitment, an interest in each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing to the CL Lenders and the Credit-Linked Deposits of the various CL Lenders and (y) a participation in the Credit-Linked Deposits established pursuant to Section 2C.01 and all amounts deposited in the Credit-Linked Deposit Account from time to time or to be returned to the Lenders in accordance with the provisions of Section 2)time, whether or not such Lender shall previously have participated therein, equal to such Lender’s Exchange Percentage thereof.
(ii) The foregoing actions pursuant to immediately preceding clause (i) shall be accomplished pursuant to this Section 1.14(b1.13(b) through purchases and sales of participations in the various Tranches as required hereby, and at the request of the Administrative Agent each Lender hereby agrees to enter into customary participation agreements approved by the Administrative Agent to evidence the same. All purchases and sales of participations pursuant to this Section 1.14(b1.13(b) shall be made in Dollars. Without limiting the foregoing, it is understood and agreed that, pursuant to this Section 1.14(b), the various CL Lenders may be selling participations to the other Lenders in their Credit-Linked Deposits (after giving effect to the actions required on, or promptly following, the occurrence of the Sharing Event pursuant to Section 1.14(a)), and in connection therewith each CL Lender shall be paid, in immediately available funds in Dollars, amounts equal to the percentage participations sold by them in their Credit-Linked Deposits, which immediately available funds shall be paid by the Lenders acquiring participations therein. At the request of the Administrative Agent, each Lender which has sold participations in any of its Tranches as provided above (through the Administrative Agent) will deliver to each Lender (through the Administrative Agent) which has so purchased a participation therein a participation certificate in the appropriate amount as determined in conjunction with the Administrative Agent. It is understood that the amount of immediately available funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required above.
(c) In the event that any Lender shall default on its obligation to pay over any amount to the Administrative Agent in respect of any Letter of Credit or any Bank Guaranty as provided in Section 1.14(b), each other Lender shall have a claim against such defaulting Lender (and not against the Administrative Agent, any Issuing Lender, any Bank Guaranty Issuer, the Deposit Bank or any other Lender) for any damages sustained by it as a result of such default[Reserved].
(d) All determinations by the Administrative Agent pursuant to this Section 1.14 1.13 shall be made by it in accordance with the provisions herein and with the intent being to equitably share the credit risk for all Tranches (and the Credit-Linked Deposits) hereunder in accordance with the provisions hereof. Absent manifest error, all determinations by the Administrative Agent hereunder shall be binding on the Borrowers, Borrowers and each of the Lenders, each Issuing Lender, each Bank Guaranty Issuer and the Deposit Bank. The Administrative Agent shall have no liability to either Borrower, Borrower or any Lender, any Issuing Bank, any Bank Guaranty Issuer or the Deposit Bank Lender for any determinations made by it hereunder except to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(e) Upon, and after, the occurrence of a Sharing Event (i) no further Credit Events shall be made or occur, and (ii) all Credit-Linked Commitments and all Incremental Term Loan Commitments (if any) shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interests as required above in any extensions of credit (and/or any Credit-Linked Deposits) upon the occurrence of a Sharing Event shall not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date.
(f) If any amount required to be paid by any Lender pursuant to this Section 1.14 1.13 is not paid to the Administrative Agent on the date upon which the Sharing Event occurred, such Lender shall, in addition to such aforementioned amount, also pay to the Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Lender for the purchase of its participations, (ii) the daily average Federal Funds Rate, during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent and (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable under this Section 1.14 1.13 shall be conclusive in the absence of manifest error. Amounts payable by any Lender pursuant to this Section 1.14 1.13 shall be paid to the Administrative Agent for the account of the relevant Lenders, provided that, if the Administrative Agent (in its sole discretion) has elected to fund on behalf of such other Lender the amounts owing to such other Lenders, then the amounts shall be paid to the Administrative Agent for its own account.
(g) Whenever, at any time after the relevant Lenders have received from any other Lenders purchases of participations pursuant to this Section 1.141.13, the various Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received, provided, however, that in the event that such payment received by any Lenders is required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders.
(h) Each Lender’s obligation to purchase participating interests pursuant to this Section 1.14 1.13 shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any Credit Agreement Party either Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the condition (financial or otherwise) or prospects of any Credit Agreement Party either Borrower or any other Person, (iv) any breach of this Agreement or any other Credit Document by any Credit Agreement Partyeither Borrower, any Lender, any Issuing Lender, any Bank Guaranty Issuer, any Agent, the Deposit Bank Agent or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(i) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, (i) the relevant Borrower shall pay to each Lender granting any participations as required above, for the account of the respective Lender which has purchased such participations, any increased costs and indemnities (including, without limitation, pursuant to Sections 1.111.10, 1.12, 2A.06, 2B.06 1.11 and 4.04) to the same extent as if such Lender which has purchased such participations were the direct Lender as opposed to a participant therein, which increased costs shall be calculated without regard to Section 1.131.12, Section 13.04(a) or the penultimate sentence of Section 13.04(b) and (ii) each Lender which has sold such participations shall be entitled to receive from the relevant Borrower indemnification from and against any and all taxes imposed as a result of the sale of the participations pursuant to this Section 1.
Appears in 3 contracts
Samples: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)
Special Provisions Applicable to Lenders Upon the Occurrence of a Sharing Event. (a) On the date of the occurrence of any Sharing Event, or promptly thereafter, (i) if there have been any Drawings drawings pursuant to Letters the Letter of Credit which have not yet been reimbursed to the respective Issuing Lender Bank pursuant to Section 2A2.1(b), the respective Issuing Lender Bank shall seek reimbursement therefor as permitted pursuant to Section 2A.04(c) and (ii) if there have been any Bank Guaranty Payments pursuant to Bank Guaranties which have not yet been reimbursed to the respective Bank Guaranty Issuer pursuant to Section 2B, the respective Bank Guaranty Issuer shall seek reimbursement therefor as permitted pursuant to Section 2B.04(c)2.1(b)(vi). After giving effect to the actions taken (or required to be taken) pursuant to the preceding sentence, the Administrative Agent shall request that the Deposit Bank return (in which case the Deposit Bank shall return) to the Administrative Agent who shall, in turn, return to the CL Pre-Funded L/C Lenders amounts (if any) representing CreditPre-Linked Funded L/C Deposits which are permitted to be returned to the CL Pre-Funded L/C Lenders at such time in accordance with Section 2C.04(a2.1(b)(vi) hereof.
(i) Upon the occurrence of a Sharing Event, but after giving effect to the actions required to be taken pursuant to preceding clause (a) of this Section 1.14 2.9 (although any failure by the Administrative Agent, the Deposit Bank or any Lender to take the actions required of it pursuant to said clause shall not prevent the actions required hereby, but the respective Administrative Agent, Deposit Bank or Lender shall continue to be obligated to perform its obligations as required above and the Administrative Agent shall be authorized to make any equitable adjustments as may be deemed necessary or desirable pursuant to the provisions of this Section 1.14(b)2.9), the Lenders shall purchase participations from other Lenders in each of the respective Tranches of Loans and the CL Tranche Facilities (including, in the case of the CL TranchePre-Funded L/C Facility, participations in each outstanding the L/C Letter of Credit, each Unpaid Drawing unpaid drawing owing to the CL Pre-Funded L/C Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing to the CL Lenders and the CreditPre-Linked Funded L/C Deposits of the various CL Pre-Funded L/C Lenders) so that, after giving effect to such purchases, each Lender shall have the same credit exposure in each Tranche Facility at such time (including, (x) in the case of the Total CreditPre-Linked CommitmentFunded L/C Facility, an interest in each outstanding the Letter of Credit, each Unpaid Drawing unpaid drawing owing to the CL Pre-Funded L/C Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing to the CL Lenders and the CreditPre-Linked Funded L/C Deposits of the various CL Pre-Funded L/C Lenders and (y) a participation in the CreditPre-Linked Funded L/C Deposits established pursuant to Section 2C.01 2.1(b)(iv) and all amounts deposited in the CreditPre-Linked Funded L/C Deposit Account from time to time or to be returned to the Pre-Funded L/C Lenders in accordance with the provisions of Section 22.1(b)), whether or not such Lender shall previously have participated therein, equal to such Lender’s Exchange Percentage thereof.
(ii) The foregoing actions pursuant to immediately preceding clause (i) shall be accomplished pursuant to this Section 1.14(b) 2.9 through purchases and sales of participations in the various Tranches Facilities as required hereby, and at the request of the Administrative Agent Agent, each Lender hereby agrees to enter into customary participation agreements approved by the Administrative Agent to evidence same. All purchases and sales of participations pursuant to this Section 1.14(b) 2.9 shall be made in Dollars. Without limiting the foregoing, it is understood and agreed that, pursuant to this Section 1.14(b)2.9, the various CL Pre-Funded L/C Lenders may be selling participations to the other Lenders in their CreditPre-Linked Funded L/C Deposits (after giving effect to the actions required on, or promptly following, the occurrence of the Sharing Event pursuant to Section 1.14(a)2.9), and in connection therewith each CL Pre-Funded L/C Lender shall be paid, in immediately available funds in Dollars, amounts equal to the percentage participations sold by them in their CreditPre-Linked Funded L/C Deposits, which immediately available funds shall be paid by the Lenders acquiring participations therein. At the request of the Administrative Agent, each Lender which has sold participations in any of its Tranches Facilities as provided above (through the Administrative Agent) will deliver to each Lender (through the Administrative Agent) which has so purchased a participation therein a participation certificate in the appropriate amount as determined in conjunction with the Administrative Agent. It is understood that the amount of immediately available funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required above.
(c) In the event that any Lender shall default on its obligation to pay over any amount to the Administrative Agent in respect of any the Letter of Credit or any Bank Guaranty as provided in Section 1.14(b)2.9, each other Lender shall have a claim against such defaulting Lender (and not against the Administrative Agent, any Issuing LenderBank, any Bank Guaranty Issuer, the Deposit Bank or any other Lender) for any damages sustained by it as a result of such default.
(d) All determinations by the Administrative Agent pursuant to this Section 1.14 2.9 shall be made by it in accordance with the provisions herein and with the intent being to equitably share the credit risk for all Tranches Facilities (and the CreditPre-Linked Funded L/C Deposits) hereunder in accordance with the provisions hereof. Absent manifest error, all determinations by the Administrative Agent hereunder shall be binding on the BorrowersCompany, each of the Lenders, each Issuing Lender, each Bank Guaranty Issuer and the Deposit Bank. The Administrative Agent shall have no liability to either BorrowerCompany, any Lender, any Issuing Bank, any Bank Guaranty Issuer or the Deposit Bank for any determinations made by it hereunder except to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(e) Upon, and after, the occurrence of a Sharing Event (i) no further Credit Events Borrowings shall be made or occur, and (ii) all CreditPre-Linked Funded L/C Commitments and all Incremental Term Loan Commitments (if any) shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interests as required above in any extensions of credit (and/or any CreditPre-Linked Funded L/C Deposits) upon the occurrence of a Sharing Event shall not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date.
(f) If any amount required to be paid by any Lender pursuant to this Section 1.14 is not paid to the Administrative Agent on the date upon which the Sharing Event occurred, such Lender shall, in addition to such aforementioned amount, also pay to the Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Lender for the purchase of its participations, (ii) the daily average Federal Funds Rate, during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent and (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable under this Section 1.14 shall be conclusive in the absence of manifest error. Amounts payable by any Lender pursuant to this Section 1.14 shall be paid to the Administrative Agent for the account of the relevant Lenders, provided that, if the Administrative Agent (in its sole discretion) has elected to fund on behalf of such other Lender the amounts owing to such other Lenders, then the amounts shall be paid to the Administrative Agent for its own account.
(g) Whenever, at any time after the relevant Lenders have received from any other Lenders purchases of participations pursuant to this Section 1.14, the various Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received, provided, however, that in the event that such payment received by any Lenders is required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders.
(h) Each Lender’s obligation to purchase participating interests pursuant to this Section 1.14 shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any Credit Agreement Party or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the condition (financial or otherwise) or prospects of any Credit Agreement Party or any other Person, (iv) any breach of this Agreement or any other Credit Document by any Credit Agreement Party, any Lender, any Issuing Lender, any Bank Guaranty Issuer, any Agent, the Deposit Bank or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(i) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, (i) the relevant Borrower shall pay to each Lender granting any participations as required above, for the account of the respective Lender which has purchased such participations, any increased costs and indemnities (including, without limitation, pursuant to Sections 1.11, 1.12, 2A.06, 2B.06 and 4.04) to the same extent as if such Lender which has purchased such participations were the direct Lender as opposed to a participant therein, which increased costs shall be calculated without regard to Section 1.13, Section 13.04(a) or the penultimate sentence of Section 13.04(b) and (ii) each Lender which has sold such participations shall be entitled to receive from the relevant Borrower indemnification from and against any and all taxes imposed as a result of the sale of the participations pursuant to this Section 1.
Appears in 2 contracts
Samples: Term Loan Agreement (Texas Petrochemicals Inc.), Term Loan Agreement (Texas Petrochemicals Inc.)
Special Provisions Applicable to Lenders Upon the Occurrence of a Sharing Event. (a) On the date of the occurrence of a Sharing Event, automatically (and without the taking of any action) (x) all then outstanding Non-Dollar Denominated Loans, all Unpaid Drawings in respect of Letters of Credit issued for either Borrower's account owed in Euros and all Unreimbursed Payments in respect of Bank Guaranties issued for the Bermuda Borrower's account owed in Euros, shall be automatically converted into Loans of the respective Tranche maintained in, Unpaid Drawings of the respective Tranche owing in, or Unreimbursed Payments owing in, Dollars (in an amount equal to the Dollar Equivalent of the aggregate principal amount of the respective Loans, Unpaid Drawings or Unreimbursed Payments on the date such Sharing Event first occurred, which Loans, Unpaid Drawings and Unreimbursed Payments (i) shall continue to be owed by the U.S. Borrower or the Bermuda Borrower, as the case may be, (ii) shall at all times thereafter be deemed to be Base Rate Loans and (iii) shall be immediately due and payable on the date such Sharing Event has occurred) and (y) all principal, accrued and unpaid interest and other amounts owing with respect to such Non-Dollar Denominated Loans, Unpaid Drawings and Unreimbursed Payments shall be immediately due and payable in Dollars, taking the Dollar Equivalent of such principal, accrued and unpaid interest and other amounts. The occurrence of any conversion of Non-Dollar Denominated Loans, Unpaid Drawing or Unreimbursed Payments to Base Rate Loans as provided above in this Section 1.14(a) shall be deemed to constitute, for purposes of Section 1.11, a prepayment of Loans before the last day of any Interest Period relating thereto.
(b) On the date of the occurrence of any Sharing Event, or promptly thereafter(i) if any Multicurrency Facility Swingline Loans are outstanding, a Mandatory Multicurrency Facility RL Borrowing shall be made by the respective Multicurrency Facility Lenders in accordance with the provisions of Section 1.01(g), (iii) if any Dollar Facility Swingline Loans are outstanding, one or more Mandatory Dollar Facility RL Borrowings shall be made in accordance with the requirements of Section 1.01(h), (iii) if there have been any Drawings pursuant to Letters of Credit which have not yet been reimbursed to the respective Issuing Lender pursuant to Section 2A, the various L/C Participants in the respective Letters of Credit shall make payments to the Issuing Lender shall seek reimbursement therefor as permitted pursuant to in accordance with the requirements of Section 2A.04(c) 2A.04 and (iiiv) if there have been any Bank Guaranty Payments pursuant to Bank Guaranties which have not yet been reimbursed to the respective Bank Guaranty Issuer pursuant to Section 2B, the various B/G Participants in the respective Bank Guaranties shall make payments to the Bank Guaranty Issuer therefor in accordance with the requirements of Section 2B.04. Each Lender which is required to make payments pursuant to the immediately preceding sentence shall be obligated to do so in accordance with the terms of this Agreement. For purposes of making calculations pursuant to the following provisions of this Section 1.14, such payments shall be deemed to have been made on the date of the occurrence of the Sharing Event, before making such calculations. Notwithstanding anything to the contrary contained in the immediately preceding sentence, any Lender which has failed, or fails, to make any payments required to be made by it as described in this clause (b) (and/or the other relevant Sections of this Agreement) shall remain obligated to make such payments, together with interest thereon, and shall be obligated to the Swingline Lender, the respective Issuing Lender or the respective Bank Guaranty Issuer shall seek reimbursement therefor Issuer, as permitted pursuant to Section 2B.04(c)). After giving effect to the actions taken (case may be, for any damages caused by its delay or failure in making any payments required to be taken) pursuant to the preceding sentence, the Administrative Agent shall request that the Deposit Bank return (in which case the Deposit Bank shall return) to the Administrative Agent who shall, in turn, return to the CL Lenders amounts (if any) representing Credit-Linked Deposits which are permitted to be returned to the CL Lenders at such time in accordance with Section 2C.04(a) hereofmade by it as described above.
(ic) Upon On the date of the occurrence of a Sharing Event, but the following actions shall be required to occur: (i) the participations of the RL Lenders in all then outstanding Letters of Credit shall be automatically adjusted so that each RL Lender shall participate in each outstanding Letter of Credit (whether a Multicurrency Facility Letter of Credit or Dollar Facility Letter of Credit) in accordance with their RL Percentages, rather than their Multicurrency Facility RL Percentages or their Dollar Facility RL Percentages, as the case may be, (ii) the participations of the RL Lenders in all then outstanding Bank Guaranties shall be automatically adjusted so that each RL Lender shall participate in each outstanding Bank Guaranty in accordance with their RL Percentages, rather than their Multicurrency Facility RL Percentages and (iii) if the outstanding principal of all then outstanding Revolving Loans, and Unpaid Drawings and Unreimbursed Payments theretofore paid, and owing to, the respective RL Lender (after giving effect to the actions conversions and events required to be taken pursuant to preceding clause by Sections 1.14(a) and (a) of this Section 1.14 (although any failure by the Administrative Agent, the Deposit Bank or any Lender to take the actions required of it pursuant to said clause shall not prevent the actions required hereby, but the respective Administrative Agent, Deposit Bank or Lender shall continue to be obligated to perform its obligations as required above and the Administrative Agent shall be authorized to make any equitable adjustments as may be deemed necessary or desirable pursuant to the provisions of this Section 1.14(bb)), is less than its RL Percentage of the Lenders outstanding principal amount of all Revolving Loans and the aggregate amount of all Unpaid Drawings and Unreimbursed Payments at such time, then such RL Lender shall purchase purchase, for cash in Dollars, participations from other RL Lenders in each of the respective Tranches of Loans and the CL Tranche (includingtheir outstanding Revolving Loans, in the case of the CL Tranche, participations in each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each Drawings and/or Unreimbursed Payment owing to the CL Lenders and the Credit-Linked Deposits of the various CL Lenders) Payments so that, after giving effect to such purchasespurchases by all RL Lenders which are in such position, each RL Lender shall have the same credit exposure in each Tranche (with respect to Revolving Loans, Unpaid Drawings and Unreimbursed Payments), as a percentage of its Revolving Loan Commitment (before giving effect to any termination or reduction thereof at such time (including, (x) in or prior to the case occurrence of the Total Credit-Linked Commitmentrespective Sharing Event), an interest in as each outstanding Letter other RL Lender. Any payments made after the date of Credit, each Unpaid Drawing owing the respective Sharing Event pursuant to the CL Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing preceding sentence shall be required to be accompanied by payments of interest (which shall be distributed by the Administrative Agent to the CL respective Lender or Lenders and entitled to receive the Credit-Linked Deposits respective cash payments) at the greater of the various CL Lenders and (y) a participation in Federal Funds Rate or such rate as may be determined by the Credit-Linked Deposits established pursuant to Section 2C.01 and all amounts deposited in the Credit-Linked Deposit Account from time to time or to be returned to the Lenders Administrative Agent in accordance with the provisions of Section 2), whether or not such Lender shall previously have participated therein, equal to such Lender’s Exchange Percentage thereof.
(ii) banking industry practice on interbank compensation. The foregoing actions pursuant to immediately preceding clause (i) purchases shall be accomplished pursuant to this Section 1.14(b) through purchases and sales of participations in the various Tranches relevant obligations as required herebyabove, and each Lender hereby agrees, at the request of the Administrative Agent each Lender hereby agrees Agent, to enter into customary participation agreements approved by the Administrative Agent to evidence sameeffect the foregoing. All purchases and of sales of participations participating interests pursuant to this Section 1.14(b1.14(c) shall be made in Dollars. Without limiting Promptly following the foregoing, it is understood and agreed that, pursuant to this Section 1.14(b)occurrence of a Sharing Event, the Administrative Agent shall notify each RL Lender and shall specify the amount of Dollars required from each RL Lender to effect the purchases and sales by the various CL RL Lenders may be selling participations of participating interests in the amounts required above (together with accrued interest with respect to the other Lenders in their Credit-Linked Deposits (after giving effect to period for the actions required on, or promptly following, most recent payment date through the occurrence date of the Sharing Event plus any additional amounts payable by the Borrowers pursuant to Section 1.14(a4.04 in respect of such accrued and unpaid interest)). Promptly upon receipt of such request, and in connection therewith each CL RL Lender required to purchase participations as specified above shall be paid, deliver to the Administrative Agent (in immediately available funds funds) Dollars in Dollars, the amounts equal to the percentage participations sold specified by them in their Credit-Linked Deposits, which immediately available funds shall be paid by the Lenders acquiring participations therein. At the request of the Administrative Agent. The Administrative Agent shall promptly deliver the amounts so received to the various RL Lenders who are selling participations in such amounts as are needed to effect the purchases of participations as provided above. Promptly following receipt thereof, each RL Lender which has had sold participations in any of its Tranches as provided above (through the Administrative Agent) will deliver to each RL Lender (through the Administrative Agent) which has so purchased a participation therein participating interest in its Loans, Unpaid Drawings or Unreimbursed Payments a participation certificate dated the date of such purchase and in the appropriate amount as determined in conjunction with the Administrative Agent. It is understood that the amount of immediately available funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required abovesuch amounts.
(cd) In the event that any Lender shall default on its obligation to pay over any amount to the Administrative Agent in respect of any Letter of Credit or any Bank Guaranty as provided in Section 1.14(b), each other Lender shall have a claim against such defaulting Lender (and not against the Administrative Agent, any Issuing Lender, any Bank Guaranty Issuer, the Deposit Bank or any other Lender) for any damages sustained by it as a result of such default.
(d) All determinations by the Administrative Agent pursuant to this Section 1.14 shall be made by it in accordance with the provisions herein and with the intent being to equitably share the credit risk for all Tranches (and the Credit-Linked Deposits) hereunder in accordance with the provisions hereof. Absent manifest error, all determinations by the Administrative Agent hereunder shall be binding on the Borrowers, each of the Lenders, each Issuing Lender, each Bank Guaranty Issuer and the Deposit Bank. The Administrative Agent shall have no liability to either Borrower, any Lender, any Issuing Bank, any Bank Guaranty Issuer or the Deposit Bank for any determinations made by it hereunder except to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(e) Upon, and after, the occurrence of a Sharing Event (i) no further Credit Events shall be made or occur, and (ii) all Credit-Linked Commitments and all Incremental Term Loan Commitments (if any) shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interests as required above in any extensions of credit (and/or any Credit-Linked Deposits) upon the occurrence of a Sharing Event any Letter of Credit shall be outstanding and undrawn in whole or in part, or there shall exist any Bank Guaranty Outstandings representing credit exposure for events which have not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely mannerthen occurred, but no each RL Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date.
(f) If any amount required to be paid by any Lender pursuant to this Section 1.14 is not paid to the Administrative Agent on the date upon which of the occurrence of such Sharing Event occurredEvent, such Lender shall, in addition to such aforementioned amount, also pay and after giving effect to the Administrative Agent purchases and sales of participations on demand an amount equal such date pursuant to preceding Section 1.14(c), but before giving effect to the product purchases and sales of (i) the amount so required to be paid by participations on such Lender for the purchase of its participations, (ii) the daily average Federal Funds Rate, during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent and (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable under this Section 1.14 shall be conclusive in the absence of manifest error. Amounts payable by any Lender pursuant to this Section 1.14 shall be paid to the Administrative Agent for the account of the relevant Lenders1.14(e), provided that, if the Administrative Agent (in its sole discretion) has elected to fund on behalf of such other Lender the amounts owing to such other Lenders, then the amounts shall be paid to the Administrative Agent for its own account.
(g) Whenever, at any time after the relevant Lenders have received from any other Lenders purchases of participations pursuant to this Section 1.14, the various Lenders receive any payment on account thereof, such Lenders will distribute promptly pay over to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ participating interests in such amounts (appropriately adjusted, immediately available funds in the case of interest payments, to reflect the period of time during currency in which such participations were outstanding) in like funds as receivedLetter of Credit is, provided, however, that in the event that such payment received by any Lenders is required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders.
(h) Each Lender’s obligation to purchase participating interests pursuant to this Section 1.14 shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any Credit Agreement Party or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the condition (financial or otherwise) or prospects of any Credit Agreement Party or any other Person, (iv) any breach of this Agreement or any other Credit Document by any Credit Agreement Party, any Lender, any Issuing Lender, any Bank Guaranty IssuerOutstandings are, any Agentdenominated, the Deposit Bank or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar an amount equal to any such RL Lender's RL Percentage of the foregoing.
(i) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, (i) the relevant Borrower shall pay to each Lender granting any participations as required above, for the account of the respective Lender which has purchased such participations, any increased costs and indemnities (including, without limitation, pursuant to Sections 1.11, 1.12, 2A.06, 2B.06 and 4.04) to the same extent as if such Lender which has purchased such participations were the direct Lender as opposed to a participant therein, which increased costs shall be calculated without regard to Section 1.13, Section 13.04(a) or the penultimate sentence of Section 13.04(b) and (ii) each Lender which has sold such participations shall be entitled to receive from the relevant Borrower indemnification from and against any and all taxes imposed as a result of the sale of the participations pursuant to this Section 1.undrawn
Appears in 1 contract
Special Provisions Applicable to Lenders Upon the Occurrence of a Sharing Event. (a) On the date of the occurrence of any Sharing Event, or promptly thereafter, (i) if there have been any Drawings pursuant to Letters of Credit which have not yet been reimbursed to the respective Issuing Lender pursuant to Section 2A, the respective Issuing Lender shall seek reimbursement therefor as permitted pursuant to Section 2A.04(c) and (ii) if there have been any Bank Guaranty Payments pursuant to Bank Guaranties which have not yet been reimbursed to the respective Bank Guaranty Issuer pursuant to Section 2B, the respective Bank Guaranty Issuer shall seek reimbursement therefor as permitted pursuant to Section 2B.04(c)). After giving effect to the actions taken (or required to be taken) pursuant to the preceding sentence, the Administrative Agent Agent, shall request that the Deposit Bank return (in which case the Deposit Bank shall return) to the Administrative Agent who shall, in turn, return to the CL Lenders Lenders, amounts (if any) representing Credit-Linked Deposits which are permitted to be returned to the CL Lenders at such time in accordance with Section 2C.04(a) hereof.
(i) Upon the occurrence of a Sharing Event, but after giving effect to the actions required to be taken pursuant to preceding clause (a) of this Section 1.14 (although any failure by the Administrative Agent, the Deposit Bank or any Lender to take the actions required of it pursuant to said clause shall not prevent the actions required hereby, but the respective Administrative Agent, Deposit Bank or Lender shall continue to be obligated to perform its obligations as required above and the Administrative Agent shall be authorized to make any equitable adjustments as may be deemed necessary or desirable pursuant to the provisions of this Section 1.14(b)), the Lenders shall purchase participations from other Lenders in each of the respective Tranches of Loans and the CL Tranche (including, in the case of the CL Tranche, participations in each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing to the CL Lenders and the Credit-Linked Deposits of the various CL Lenders) so that, after giving effect to such purchases, each Lender shall have the same credit exposure in each Tranche at such time (including, including (x) in the case of the Total Credit-Linked Commitment, an interest in each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing to the CL Lenders and the Credit-Linked Deposits of the various CL Lenders and (y) a participation in the Credit-Credit Linked Deposits established pursuant to Section 2C.01 and all amounts deposited in the Credit-Linked Deposit Account from time to time or to be returned to the Lenders in accordance with the provisions of Section 2), whether or not such Lender shall previously have participated therein, equal to such Lender’s Exchange Percentage thereof.
(ii) The foregoing actions pursuant to immediately preceding clause (i) shall be accomplished pursuant to this Section 1.14(b) through purchases and sales of participations in the various Tranches as required hereby, and at the request of the Administrative Agent each Lender hereby agrees to enter into customary participation agreements approved by the Administrative Agent to evidence same. All purchases and sales of participations pursuant to this Section 1.14(b) shall be made in Dollars. Without limiting the foregoing, it is understood and agreed that, pursuant to this Section 1.14(b), the various CL Lenders may be selling participations to the other Lenders in their Credit-Linked Deposits (after giving effect to the actions required on, or promptly following, the occurrence of the Sharing Event pursuant to Section 1.14(a)), and in connection therewith each CL Lender shall be paid, in immediately available funds in Dollars, amounts equal to the percentage participations sold by them in their Credit-Linked Deposits, which immediately available funds shall be paid by the Lenders acquiring participations therein. At the request of the Administrative Agent, each Lender which has sold participations in any of its Tranches as provided above (through the Administrative Agent) will deliver to each Lender (through the Administrative Agent) which has so purchased a participation therein a participation certificate in the appropriate amount as determined in conjunction with the Administrative Agent. It is understood that the amount of immediately available funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required above.
(c) In the event that any Lender shall default on its obligation to pay over any amount to the Administrative Agent in respect of any Letter of Credit or any Bank Guaranty as provided in Section 1.14(b), each other Lender shall have a claim against such defaulting Lender (and not against the Administrative Agent, any Issuing Lender, any Bank Guaranty Issuer, the Deposit Bank or any other Lender) for any damages sustained by it as a result of such default.
(d) All determinations by the Administrative Agent pursuant to this Section 1.14 shall be made by it in accordance with the provisions herein and with the intent being to equitably share the credit risk for all Tranches (and the Credit-Linked Deposits) hereunder in accordance with the provisions hereof. Absent manifest error, all determinations by the Administrative Agent hereunder shall be binding on the Borrowers, each of the Lenders, each Issuing Lender, each Bank Guaranty Issuer and the Deposit Bank. The Administrative Agent shall have no liability to either Borrower, any Lender, any Issuing Bank, any Bank Guaranty Issuer or the Deposit Bank for any determinations made by it hereunder except to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(e) Upon, and after, the occurrence of a Sharing Event (i) no further Credit Events shall be made or occur, and (ii) all Credit-Linked Commitments and all Incremental Term Loan Commitments (if any) shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interests as required above in any extensions of credit (and/or any Credit-Linked Deposits) upon the occurrence of a Sharing Event shall not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date.
(f) If any amount required to be paid by any Lender pursuant to this Section 1.14 is not paid to the Administrative Agent on the date upon which the Sharing Event occurred, such Lender shall, in addition to such aforementioned amount, also pay to the Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Lender for the purchase of its participations, (ii) the daily average Federal Funds Rate, during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent and (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable under this Section 1.14 shall be conclusive in the absence of manifest error. Amounts payable by any Lender pursuant to this Section 1.14 shall be paid to the Administrative Agent for the account of the relevant Lenders, provided that, if the Administrative Agent (in its sole discretion) has elected to fund on behalf of such other Lender the amounts owing to such other Lenders, then the amounts shall be paid to the Administrative Agent for its own account.
(g) Whenever, at any time after the relevant Lenders have received from any other Lenders purchases of participations pursuant to this Section 1.14, the various Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received, provided, however, that in the event that such payment received by any Lenders is required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders.
(h) Each Lender’s obligation to purchase participating interests pursuant to this Section 1.14 shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any Credit Agreement Party or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the condition (financial or otherwise) or prospects of any Credit Agreement Party or any other Person, (iv) any breach of this Agreement or any other Credit Document by any Credit Agreement Party, any Lender, any Issuing Lender, any Bank Guaranty Issuer, any Agent, the Deposit Bank or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(i) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, (i) the relevant Borrower shall pay to each Lender granting any participations as required above, for the account of the respective Lender which has purchased such participations, any increased costs and indemnities (including, without limitation, pursuant to Sections 1.11, 1.12, 2A.06, 2B.06 and 4.04) to the same extent as if such Lender which has purchased such participations were the direct Lender as opposed to a participant therein, which increased costs shall be calculated without regard to Section 1.13, Section 13.04(a) or the penultimate sentence of Section 13.04(b) and (ii) each Lender which has sold such participations shall be entitled to receive from the relevant Borrower indemnification from and against any and all taxes imposed as a result of the sale of the participations pursuant to this Section 1.the
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Special Provisions Applicable to Lenders Upon the Occurrence of a Sharing Event. (a) On the date of the occurrence of any Sharing Event, or promptly thereafter, (i) if there have been any Drawings pursuant to Letters of Credit which have not yet been reimbursed to the respective Issuing Lender pursuant to Section 2A, the respective Issuing Lender shall seek reimbursement therefor as permitted pursuant to Section 2A.04(c) and (ii) if there have been any Bank Guaranty Payments pursuant to Bank Guaranties which have not yet been reimbursed to the respective Bank Guaranty Issuer pursuant to Section 2B, the respective Bank Guaranty Issuer shall seek reimbursement therefor as permitted pursuant to Section 2B.04(c)). After giving effect to the actions taken (or required to be taken) pursuant to the preceding sentence, the Administrative Agent shall request that the Deposit Bank return (in which case the Deposit Bank shall return) to the Administrative Agent who shall, in turn, return to the CL Lenders amounts (if any) representing Credit-Linked Deposits which are permitted to be returned to the CL Lenders at such time in accordance with Section 2C.04(a) hereof.
(i) Upon the occurrence of a Sharing Event, but after giving effect to the actions required to be taken pursuant to preceding clause (a) of this Section 1.14 (although any failure by the Administrative Agent, the Deposit Bank or any Lender to take the actions required of it pursuant to said clause shall not prevent the actions required hereby, but the respective Administrative Agent, Deposit Bank or Lender shall continue to be obligated to perform its obligations as required above and the Administrative Agent shall be authorized to make any equitable adjustments as may be deemed necessary or desirable pursuant to the provisions of this Section 1.14(b)), the Lenders shall purchase participations from other Lenders in each of the respective Tranches of Loans and the CL Tranche (including, in the case of the CL Tranche, participations in each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing to the CL Lenders and the Credit-Linked Deposits of the various CL Lenders) so that, after giving effect to such purchases, each Lender shall have the same credit exposure in each Tranche at such time (including, (x) in the case of the Total Credit-Linked Commitment, an interest in each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing to the CL Lenders and the Credit-Linked Deposits of the various CL Lenders and (y) a participation in the Credit-Linked Deposits established pursuant to Section 2C.01 and all amounts deposited in the Credit-Linked Deposit Account from time to time or to be returned to the Lenders in accordance with the provisions of Section 2), whether or not such Lender shall previously have participated therein, equal to such Lender’s 's Exchange Percentage thereof.
(ii) The foregoing actions pursuant to immediately preceding clause (i) shall be accomplished pursuant to this Section 1.14(b) through purchases and sales of participations in the various Tranches as required hereby, and at the request of the Administrative Agent each Lender hereby agrees to enter into customary participation agreements approved by the Administrative Agent to evidence same. All purchases and sales of participations pursuant to this Section 1.14(b) shall be made in Dollars. Without limiting the foregoing, it is understood and agreed that, pursuant to this Section 1.14(b), the various CL Lenders may be selling participations to the other Lenders in their Credit-Linked Deposits (after giving effect to the actions required on, or promptly following, the occurrence of the Sharing Event pursuant to Section 1.14(a)), and in connection therewith each CL Lender shall be paid, in immediately available funds in Dollars, amounts equal to the percentage participations sold by them in their Credit-Linked Deposits, which immediately available funds shall be paid by the Lenders acquiring participations therein. At the request of the Administrative Agent, each Lender which has sold participations in any of its Tranches as provided above (through the Administrative Agent) will deliver to each Lender (through the Administrative Agent) which has so purchased a participation therein a participation certificate in the appropriate amount as determined in conjunction with the Administrative Agent. It is understood that the amount of immediately available funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required above.
(c) In the event that any Lender shall default on its obligation to pay over any amount to the Administrative Agent in respect of any Letter of Credit or any Bank Guaranty as provided in Section 1.14(b), each other Lender shall have a claim against such defaulting Lender (and not against the Administrative Agent, any Issuing Lender, any Bank Guaranty Issuer, the Deposit Bank or any other Lender) for any damages sustained by it as a result of such default.
(d) All determinations by the Administrative Agent pursuant to this Section 1.14 shall be made by it in accordance with the provisions herein and with the intent being to equitably share the credit risk for all Tranches (and the Credit-Linked Deposits) hereunder in accordance with the provisions hereof. Absent manifest error, all determinations by the Administrative Agent hereunder shall be binding on the Borrowers, each of the Lenders, each Issuing Lender, each Bank Guaranty Issuer and the Deposit Bank. The Administrative Agent shall have no liability to either Borrower, any Lender, any Issuing Bank, any Bank Guaranty Issuer or the Deposit Bank for any determinations made by it hereunder except to the extent resulting from the Administrative Agent’s 's gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(e) Upon, and after, the occurrence of a Sharing Event (i) no further Credit Events shall be made or occur, and (ii) all Credit-Linked Commitments and all Incremental Term Loan Commitments (if any) shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interests as required above in any extensions of credit (and/or any Credit-Linked Deposits) upon the occurrence of a Sharing Event shall not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date.
(f) If any amount required to be paid by any Lender pursuant to this Section 1.14 is not paid to the Administrative Agent on the date upon which the Sharing Event occurred, such Lender shall, in addition to such aforementioned amount, also pay to the Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Lender for the purchase of its participations, (ii) the daily average Federal Funds Rate, during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent and (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable under this Section 1.14 shall be conclusive in the absence of manifest error. Amounts payable by any Lender pursuant to this Section 1.14 shall be paid to the Administrative Agent for the account of the relevant Lenders, provided that, if the Administrative Agent (in its sole discretion) has elected to fund on behalf of such other Lender the amounts owing to such other Lenders, then the amounts shall be paid to the Administrative Agent for its own account.
(g) Whenever, at any time after the relevant Lenders have received from any other Lenders purchases of participations pursuant to this Section 1.14, the various Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ ' participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received, provided, however, that in the event that such payment received by any Lenders is required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders.
(h) Each Lender’s 's obligation to purchase participating interests pursuant to this Section 1.14 shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any Credit Agreement Party or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the condition (financial or otherwise) or prospects of any Credit Agreement Party or any other Person, (iv) any breach of this Agreement or any other Credit Document by any Credit Agreement Party, any Lender, any Issuing Lender, any Bank Guaranty Issuer, any Agent, the Deposit Bank or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(i) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, (i) the relevant Borrower shall pay to each Lender granting any participations as required above, for the account of the respective Lender which has purchased such participations, any increased costs and indemnities (including, without limitation, pursuant to Sections 1.11, 1.12, 2A.06, 2B.06 and 4.04) to the same extent as if such Lender which has purchased such participations were the direct Lender as opposed to a participant therein, which increased costs shall be calculated without regard to Section 1.13, Section 13.04(a) or the penultimate sentence of Section 13.04(b) and (ii) each Lender which has sold such participations shall be entitled to receive from the relevant Borrower indemnification from and against any and all taxes imposed as a result of the sale of the participations pursuant to this Section 1.
Appears in 1 contract
Special Provisions Applicable to Lenders Upon the Occurrence of a Sharing Event. (a) On the date of the occurrence of a Sharing Event, automatically (and without the taking of any action) (x) all then outstanding Euro Denominated Loans, all Unpaid Drawings in respect of Letters of Credit issued for either Borrower's account owed in Euros and all Unreimbursed Payments in respect of Bank Guaranties issued for the Bermuda Borrower's account owed in Euros, shall be automatically converted into Loans of the respective Tranche maintained in, Unpaid Drawings of the respective Tranche owing in, or Unreimbursed Payments owing in, Dollars (in an amount equal to the Dollar Equivalent of the aggregate principal amount of the respective Loans, Unpaid Drawings or Unreimbursed Payments on the date such Sharing Event first occurred, which Loans, Unpaid Drawings and Unreimbursed Payments (i) shall continue to be owed by the U.S. Borrower or the Bermuda Borrower, as the case may be, (ii) shall at all times thereafter be deemed to be Base Rate Loans and (iii) shall be immediately due and payable on the date such Sharing Event has occurred) and (y) all principal, accrued and unpaid interest and other amounts owing with respect to such Euro Denominated Loans, Unpaid Drawings and Unreimbursed Payments shall be immediately due and payable in Dollars, taking the Dollar Equivalent of such principal, accrued and unpaid interest and other amounts. The occurrence of any conversion of Euro Denominated Loans, Unpaid Drawing or Unreimbursed Payments to Base Rate Loans as provided above in this Section 1.14(a) shall be deemed to constitute, for purposes of Section 1.11, a prepayment of Loans before the last day of any Interest Period relating thereto.
(b) On the date of the occurrence of any Sharing Event, or promptly thereafter(i) if any Multicurrency Facility Swingline Loans are outstanding, a Mandatory Multicurrency Facility RL Borrowing shall be made by the respective Multicurrency Facility Lenders in accordance with the provisions of Section 1.01(g), (iii) if any Dollar Facility Swingline Loans are outstanding, one or more Mandatory Dollar Facility RL Borrowings shall be made in accordance with the requirements of Section 1.01(h), (iii) if there have been any Drawings pursuant to Letters of Credit which have not yet been reimbursed to the respective Issuing Lender pursuant to Section 2A, the various L/C Participants in the respective Letters of Credit shall make payments to the Issuing Lender shall seek reimbursement therefor as permitted pursuant to in accordance with the requirements of Section 2A.04(c) 2A.04 and (iiiv) if there have been any Bank Guaranty Payments pursuant to Bank Guaranties which have not yet been reimbursed to the respective Bank Guaranty Issuer pursuant to Section 2B, the various B/G Participants in the respective Bank Guaranties shall make payments to the Bank Guaranty Issuer therefor in accordance with the requirements of Section 2B.04. Each Lender which is required to make payments pursuant to the immediately preceding sentence shall be obligated to do so in accordance with the terms of this Agreement. For purposes of making calculations pursuant to the following provisions of this Section 1.14, such payments shall be deemed to have been made on the date of the occurrence of the Sharing Event, before making such calculations. Notwithstanding anything to the contrary contained in the immediately preceding sentence, any Lender which has failed, or fails, to make any payments required to be made by it as described in this clause (b) (and/or the other relevant Sections of this Agreement) shall remain obligated to make such payments, together with interest thereon, and shall be obligated to the Swingline Lender, the respective Issuing Lender or the respective Bank Guaranty Issuer shall seek reimbursement therefor Issuer, as permitted pursuant to Section 2B.04(c)). After giving effect to the actions taken (case may be, for any damages caused by its delay or failure in making any payments required to be taken) pursuant to the preceding sentence, the Administrative Agent shall request that the Deposit Bank return (in which case the Deposit Bank shall return) to the Administrative Agent who shall, in turn, return to the CL Lenders amounts (if any) representing Credit-Linked Deposits which are permitted to be returned to the CL Lenders at such time in accordance with Section 2C.04(a) hereofmade by it as described above.
(ic) Upon On the date of the occurrence of a Sharing Event, but the following actions shall be required to occur: (i) the participations of the RL Lenders in all then outstanding Letters of Credit shall be automatically adjusted so that each RL Lender shall participate in each outstanding Letter of Credit (whether a Multicurrency Facility Letter of Credit or Dollar Facility Letter of Credit) in accordance with their RL Percentages, rather than their Multicurrency Facility RL Percentages or their Dollar Facility RL Percentages, as the case may be, (ii) the participations of the RL Lenders in all then outstanding Bank Guaranties shall be automatically adjusted so that each RL Lender shall participate in each outstanding Bank Guaranty in accordance with their RL Percentages, rather than their Multicurrency Facility RL Percentages and (iii) if the outstanding principal of all then outstanding Revolving Loans, and Unpaid Drawings and Unreimbursed Payments theretofore paid, and owing to, the respective RL Lender (after giving effect to the actions conversions and events required to be taken pursuant to preceding clause by Sections 1.14(a) and (a) of this Section 1.14 (although any failure by the Administrative Agent, the Deposit Bank or any Lender to take the actions required of it pursuant to said clause shall not prevent the actions required hereby, but the respective Administrative Agent, Deposit Bank or Lender shall continue to be obligated to perform its obligations as required above and the Administrative Agent shall be authorized to make any equitable adjustments as may be deemed necessary or desirable pursuant to the provisions of this Section 1.14(bb)), is less than its RL Percentage of the Lenders outstanding principal amount of all Revolving Loans and the aggregate amount of all Unpaid Drawings and Unreimbursed Payments at such time, then such RL Lender shall purchase purchase, for cash in Dollars, participations from other RL Lenders in each of the respective Tranches of Loans and the CL Tranche (includingtheir outstanding Revolving Loans, in the case of the CL Tranche, participations in each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each Drawings and/or Unreimbursed Payment owing to the CL Lenders and the Credit-Linked Deposits of the various CL Lenders) Payments so that, after giving effect to such purchasespurchases by all RL Lenders which are in such position, each RL Lender shall have the same credit exposure in each Tranche (with respect to Revolving Loans, Unpaid Drawings and Unreimbursed Payments), as a percentage of its Revolving Loan Commitment (before giving effect to any termination or reduction thereof at such time (including, (x) in or prior to the case occurrence of the Total Credit-Linked Commitmentrespective Sharing Event), an interest in as each outstanding Letter other RL Lender. Any payments made after the date of Credit, each Unpaid Drawing owing the respective Sharing Event pursuant to the CL Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing preceding sentence shall be required to be accompanied by payments of interest (which shall be distributed by the Administrative Agent to the CL respective Lender or Lenders and entitled to receive the Credit-Linked Deposits respective cash payments) at the greater of the various CL Lenders and (y) a participation in Federal Funds Rate or such rate as may be determined by the Credit-Linked Deposits established pursuant to Section 2C.01 and all amounts deposited in the Credit-Linked Deposit Account from time to time or to be returned to the Lenders Administrative Agent in accordance with the provisions of Section 2), whether or not such Lender shall previously have participated therein, equal to such Lender’s Exchange Percentage thereof.
(ii) banking industry practice on interbank compensation. The foregoing actions pursuant to immediately preceding clause (i) purchases shall be accomplished pursuant to this Section 1.14(b) through purchases and sales of participations in the various Tranches relevant obligations as required herebyabove, and each Lender hereby agrees, at the request of the Administrative Agent each Lender hereby agrees Agent, to enter into customary participation agreements approved by the Administrative Agent to evidence sameeffect the foregoing. All purchases and of sales of participations participating interests pursuant to this Section 1.14(b1.14(d) shall be made in Dollars. Without limiting Promptly following the foregoing, it is understood and agreed that, pursuant to this Section 1.14(b)occurrence of a Sharing Event, the Administrative Agent shall notify each RL Lender and shall specify the amount of Dollars required from each RL Lender to effect the purchases and sales by the various CL RL Lenders may be selling participations of participating interests in the amounts required above (together with accrued interest with respect to the other Lenders in their Credit-Linked Deposits (after giving effect to period for the actions required on, or promptly following, most recent payment date through the occurrence date of the Sharing Event plus any additional amounts payable by the Borrowers pursuant to Section 1.14(a4.04 in respect of such accrued and unpaid interest)). Promptly upon receipt of such request, and in connection therewith each CL RL Lender required to purchase participations as specified above shall be paid, deliver to the Administrative Agent (in immediately available funds funds) Dollars in Dollars, the amounts equal to the percentage participations sold specified by them in their Credit-Linked Deposits, which immediately available funds shall be paid by the Lenders acquiring participations therein. At the request of the Administrative Agent. The Administrative Agent shall promptly deliver the amounts so received to the various RL Lenders who are selling participations in such amounts as are needed to effect the purchases of participations as provided above. Promptly following receipt thereof, each RL Lender which has had sold participations in any of its Tranches as provided above (through the Administrative Agent) will deliver to each RL Lender (through the Administrative Agent) which has so purchased a participation therein a participation certificate in the appropriate amount as determined in conjunction with the Administrative Agent. It is understood that the amount of immediately available funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required above.
(c) In the event that any Lender shall default on its obligation to pay over any amount to the Administrative Agent in respect of any Letter of Credit or any Bank Guaranty as provided in Section 1.14(b), each other Lender shall have a claim against such defaulting Lender (and not against the Administrative Agent, any Issuing Lender, any Bank Guaranty Issuer, the Deposit Bank or any other Lender) for any damages sustained by it as a result of such default.
(d) All determinations by the Administrative Agent pursuant to this Section 1.14 shall be made by it in accordance with the provisions herein and with the intent being to equitably share the credit risk for all Tranches (and the Credit-Linked Deposits) hereunder in accordance with the provisions hereof. Absent manifest error, all determinations by the Administrative Agent hereunder shall be binding on the Borrowers, each of the Lenders, each Issuing Lender, each Bank Guaranty Issuer and the Deposit Bank. The Administrative Agent shall have no liability to either Borrower, any Lender, any Issuing Bank, any Bank Guaranty Issuer or the Deposit Bank for any determinations made by it hereunder except to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(e) Upon, and after, the occurrence of a Sharing Event (i) no further Credit Events shall be made or occur, and (ii) all Credit-Linked Commitments and all Incremental Term Loan Commitments (if any) shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interests as required above in any extensions of credit (and/or any Credit-Linked Deposits) upon the occurrence of a Sharing Event shall not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date.
(f) If any amount required to be paid by any Lender pursuant to this Section 1.14 is not paid to the Administrative Agent on the date upon which the Sharing Event occurred, such Lender shall, in addition to such aforementioned amount, also pay to the Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Lender for the purchase of its participations, (ii) the daily average Federal Funds Rate, during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent and (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable under this Section 1.14 shall be conclusive in the absence of manifest error. Amounts payable by any Lender pursuant to this Section 1.14 shall be paid to the Administrative Agent for the account of the relevant Lenders, provided that, if the Administrative Agent (in its sole discretion) has elected to fund on behalf of such other Lender the amounts owing to such other Lenders, then the amounts shall be paid to the Administrative Agent for its own account.
(g) Whenever, at any time after the relevant Lenders have received from any other Lenders purchases of participations pursuant to this Section 1.14, the various Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received, provided, however, that in the event that such payment received by any Lenders is required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders.
(h) Each Lender’s obligation to purchase participating interests pursuant to this Section 1.14 shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any Credit Agreement Party or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the condition (financial or otherwise) or prospects of any Credit Agreement Party or any other Person, (iv) any breach of this Agreement or any other Credit Document by any Credit Agreement Party, any Lender, any Issuing Lender, any Bank Guaranty Issuer, any Agent, the Deposit Bank or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(i) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, (i) the relevant Borrower shall pay to each Lender granting any participations as required above, for the account of the respective Lender which has purchased such participations, any increased costs and indemnities (including, without limitation, pursuant to Sections 1.11, 1.12, 2A.06, 2B.06 and 4.04) to the same extent as if such Lender which has purchased such participations were the direct Lender as opposed to a participant therein, which increased costs shall be calculated without regard to Section 1.13, Section 13.04(a) or the penultimate sentence of Section 13.04(b) and (ii) each Lender which has sold such participations shall be entitled to receive from the relevant Borrower indemnification from and against any and all taxes imposed as a result of the sale of the participations pursuant to this Section 1.its
Appears in 1 contract
Special Provisions Applicable to Lenders Upon the Occurrence of a Sharing Event. (a) On the date of the occurrence of a Sharing Event, automatically (and without the taking of any action) (x) all then outstanding Euro Denominated Loans, all Unpaid Drawings in respect of Letters of Credit issued for either Borrower's account owed in Euros and all Unreimbursed Payments in respect of Bank Guaranties issued for the Bermuda Borrower's account owed in Euros, shall be automatically converted into Loans of the respective Tranche maintained in, Unpaid Drawings of the respective Tranche owing in, or Unreimbursed Payments owing in, Dollars (in an amount equal to the Dollar Equivalent of the aggregate principal amount of the respective Loans, Unpaid Drawings or Unreimbursed Payments on the date such Sharing Event first occurred, which Loans, Unpaid Drawings and Unreimbursed Payments (i) shall continue to be owed by the U.S. Borrower or the Bermuda Borrower, as the case may be, (ii) shall at all times thereafter be deemed to be Base Rate Loans and (iii) shall be immediately due and payable on the date such Sharing Event has occurred) and (y) all principal, accrued and unpaid interest and other amounts owing with respect to such Euro Denominated Loans, Unpaid Drawings and Unreimbursed Payments shall be immediately due and payable in Dollars, taking the Dollar Equivalent of such principal, accrued and unpaid interest and other amounts. The occurrence of any conversion of Euro Denominated Loans, Unpaid Drawing or Unreimbursed Payments to Base Rate Loans as provided above in this Section 1.14(a) shall be deemed to constitute, for purposes of Section 1.11, a prepayment of Loans before the last day of any Interest Period relating thereto.
(b) On the date of the occurrence of any Sharing Event, or promptly thereafter(i) if any Multicurrency Facility Swingline Loans are outstanding, a Mandatory Multicurrency Facility RL Borrowing shall be made by the respective Multicurrency Facility Lenders in accordance with the provisions of Section 1.01(g), (iii) if any Dollar Facility Swingline Loans are outstanding, one or more Mandatory Dollar Facility RL Borrowings shall be made in accordance with the requirements of Section 1.01(h), (iii) if there have been any Drawings pursuant to Letters of Credit which have not yet been reimbursed to the respective Issuing Lender pursuant to Section 2A, the various L/C Participants in the respective Letters of Credit shall make payments to the Issuing Lender shall seek reimbursement therefor as permitted pursuant to in accordance with the requirements of Section 2A.04(c) 2A.04 and (iiiv) if there have been any Bank Guaranty Payments pursuant to Bank Guaranties which have not yet been reimbursed to the respective Bank Guaranty Issuer pursuant to Section 2B, the various B/G Participants in the respective Bank Guaranties shall make payments to the Bank Guaranty Issuer therefor in accordance with the requirements of Section 2B.04. Each Lender which is required to make payments pursuant to the immediately preceding sentence shall be obligated to do so in accordance with the terms of this Agreement. For purposes of making calculations pursuant to the following provisions of this Section 1.14, such payments shall be deemed to have been made on the date of the occurrence of the Sharing Event, before making such calculations. Notwithstanding anything to the contrary contained in the immediately preceding sentence, any Lender which has failed, or fails, to make any payments required to be made by it as described in this clause (b) (and/or the other relevant Sections of this Agreement) shall remain obligated to make such payments, together with interest thereon, and shall be obligated to the Swingline Lender, the respective Issuing Lender or the respective Bank Guaranty Issuer shall seek reimbursement therefor Issuer, as permitted pursuant to Section 2B.04(c)). After giving effect to the actions taken (case may be, for any damages caused by its delay or failure in making any payments required to be taken) pursuant to the preceding sentence, the Administrative Agent shall request that the Deposit Bank return (in which case the Deposit Bank shall return) to the Administrative Agent who shall, in turn, return to the CL Lenders amounts (if any) representing Credit-Linked Deposits which are permitted to be returned to the CL Lenders at such time in accordance with Section 2C.04(a) hereofmade by it as described above.
(ic) Upon On the date of the occurrence of a Sharing Event, but the following actions shall be required to occur: (i) the participations of the RL Lenders in all then outstanding Letters of Credit shall be automatically adjusted so that each RL Lender shall participate in each outstanding Letter of Credit (whether a Multicurrency Facility Letter of Credit or Dollar Facility Letter of Credit) in accordance with their RL Percentages, rather than their Multicurrency Facility RL Percentages or their Dollar Facility RL Percentages, as the case may be, (ii) the participations of the RL Lenders in all then outstanding Bank Guaranties shall be automatically adjusted so that each RL Lender shall participate in each outstanding Bank Guaranty in accordance with their RL Percentages, rather than their Multicurrency Facility RL Percentages and (iii) if the outstanding principal of all then outstanding Revolving Loans, and Unpaid Drawings and Unreimbursed Payments theretofore paid, and owing to, the respective RL Lender (after giving effect to the actions conversions and events required to be taken pursuant to preceding clause by Sections 1.14(a) and (a) of this Section 1.14 (although any failure by the Administrative Agent, the Deposit Bank or any Lender to take the actions required of it pursuant to said clause shall not prevent the actions required hereby, but the respective Administrative Agent, Deposit Bank or Lender shall continue to be obligated to perform its obligations as required above and the Administrative Agent shall be authorized to make any equitable adjustments as may be deemed necessary or desirable pursuant to the provisions of this Section 1.14(bb)), is less than its RL Percentage of the Lenders outstanding principal amount of all Revolving Loans and the aggregate amount of all Unpaid Drawings and Unreimbursed Payments at such time, then such RL Lender shall purchase purchase, for cash in Dollars, participations from other RL Lenders in each of the respective Tranches of Loans and the CL Tranche (includingtheir outstanding Revolving Loans, in the case of the CL Tranche, participations in each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each Drawings and/or Unreimbursed Payment owing to the CL Lenders and the Credit-Linked Deposits of the various CL Lenders) Payments so that, after giving effect to such purchasespurchases by all RL Lenders which are in such position, each RL Lender shall have the same credit exposure in each Tranche (with respect to Revolving Loans, Unpaid Drawings and Unreimbursed Payments), as a percentage of its Revolving Loan Commitment (before giving effect to any termination or reduction thereof at such time (including, (x) in or prior to the case occurrence of the Total Credit-Linked Commitmentrespective Sharing Event), an interest in as each outstanding Letter other RL Lender. Any payments made after the date of Credit, each Unpaid Drawing owing the respective Sharing Event pursuant to the CL Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment owing preceding sentence shall be required to be accompanied by payments of interest (which shall be distributed by the Administrative Agent to the CL respective Lender or Lenders and entitled to receive the Credit-Linked Deposits respective cash payments) at the greater of the various CL Lenders and (y) a participation in Federal Funds Rate or such rate as may be determined by the Credit-Linked Deposits established pursuant to Section 2C.01 and all amounts deposited in the Credit-Linked Deposit Account from time to time or to be returned to the Lenders Administrative Agent in accordance with the provisions of Section 2), whether or not such Lender shall previously have participated therein, equal to such Lender’s Exchange Percentage thereof.
(ii) banking industry practice on interbank compensation. The foregoing actions pursuant to immediately preceding clause (i) purchases shall be accomplished pursuant to this Section 1.14(b) through purchases and sales of participations in the various Tranches relevant obligations as required herebyabove, and each Lender hereby agrees, at the request of the Administrative Agent each Lender hereby agrees Agent, to enter into customary participation agreements approved by the Administrative Agent to evidence sameeffect the foregoing. All purchases and of sales of participations participating interests pursuant to this Section 1.14(b1.14(d) shall be made in Dollars. Without limiting Promptly following the foregoing, it is understood and agreed that, pursuant to this Section 1.14(b)occurrence of a Sharing Event, the Administrative Agent shall notify each RL Lender and shall specify the amount of Dollars required from each RL Lender to effect the purchases and sales by the various CL RL Lenders may be selling participations of participating interests in the amounts required above (together with accrued interest with respect to the other Lenders in their Credit-Linked Deposits (after giving effect to period for the actions required on, or promptly following, most recent payment date through the occurrence date of the Sharing Event plus any additional amounts payable by the Borrowers pursuant to Section 1.14(a4.04 in respect of such accrued and unpaid interest)). Promptly upon receipt of such request, and in connection therewith each CL RL Lender required to purchase participations as specified above shall be paid, deliver to the Administrative Agent (in immediately available funds funds) Dollars in Dollars, the amounts equal to the percentage participations sold specified by them in their Credit-Linked Deposits, which immediately available funds shall be paid by the Lenders acquiring participations therein. At the request of the Administrative Agent. The Administrative Agent shall promptly deliver the amounts so received to the various RL Lenders who are selling participations in such amounts as are needed to effect the purchases of participations as provided above. Promptly following receipt thereof, each RL Lender which has had sold participations in any of its Tranches as provided above (through the Administrative Agent) will deliver to each RL Lender (through the Administrative Agent) which has so purchased a participation therein participating interest in its Loans, Unpaid Drawings or Unreimbursed Payments a participation certificate dated the date of such purchase and in the appropriate amount as determined in conjunction with the Administrative Agent. It is understood that the amount of immediately available funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required abovesuch amounts.
(cd) In the event that any Lender shall default on its obligation to pay over any amount to the Administrative Agent in respect of any Letter of Credit or any Bank Guaranty as provided in Section 1.14(b), each other Lender shall have a claim against such defaulting Lender (and not against the Administrative Agent, any Issuing Lender, any Bank Guaranty Issuer, the Deposit Bank or any other Lender) for any damages sustained by it as a result of such default.
(d) All determinations by the Administrative Agent pursuant to this Section 1.14 shall be made by it in accordance with the provisions herein and with the intent being to equitably share the credit risk for all Tranches (and the Credit-Linked Deposits) hereunder in accordance with the provisions hereof. Absent manifest error, all determinations by the Administrative Agent hereunder shall be binding on the Borrowers, each of the Lenders, each Issuing Lender, each Bank Guaranty Issuer and the Deposit Bank. The Administrative Agent shall have no liability to either Borrower, any Lender, any Issuing Bank, any Bank Guaranty Issuer or the Deposit Bank for any determinations made by it hereunder except to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(e) Upon, and after, the occurrence of a Sharing Event (i) no further Credit Events shall be made or occur, and (ii) all Credit-Linked Commitments and all Incremental Term Loan Commitments (if any) shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interests as required above in any extensions of credit (and/or any Credit-Linked Deposits) upon the occurrence of a Sharing Event any Letter of Credit shall be outstanding and undrawn in whole or in part, or there shall exist any Bank Guaranty Outstandings representing credit exposure for events which have not relieve any other then occurred, each RL Lender shall on the date of its obligation hereunder the occurrence of such Sharing Event, and after giving effect to purchase its participating interests in a timely mannerthe purchases and sales of participations on such date pursuant to preceding Section 1.14(c), but no Lender shall be responsible for before giving effect to the failure purchases and sales of any other Lender to purchase the participating interest to be purchased by participations on such other Lender on any date.
(f) If any amount required to be paid by any Lender date pursuant to this Section 1.14 is not paid 1.14(e), promptly pay over to the Administrative Agent on the date upon which the Sharing Event occurred, such Lender shallAgent, in addition to immediately available funds in the currency in which such aforementioned amountLetter of Credit is, also pay to the Administrative Agent on demand or Bank Guaranty Outstandings are, denominated, an amount equal to such RL Lender's RL Percentage of such undrawn face amount or Bank Guaranty Outstandings, as applicable, together with interest thereon (denominated in the product of (irelevant currency) the amount so required to be paid by such Lender for the purchase of its participations, (ii) the daily average Federal Funds Rate, during the period from and including the date of request for payment the Sharing Event to the date on which such payment is immediately available to the Administrative Agent and (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable under this Section 1.14 shall be conclusive in the absence of manifest error. Amounts payable by any Lender pursuant to this Section 1.14 amount shall be paid to the Administrative Agent for the account of the relevant Lenders, provided that, if at a rate per annum equal to that rate determined by the Administrative Agent in accordance with banking industry rules or practice on interbank compensation. The Administrative Agent shall establish a separate account or accounts for each RL Lender in an amount equal to the amount received from such Lender pursuant to the preceding sentence. The Administrative Agent shall have sole dominion and control over each such account (in its sole discretion) has elected to fund on behalf of such other Lender each, a "Special Reserve Account"), and the amounts owing to such other Lenders, then the amounts deposited in each Special Reserve Account shall be paid to the Administrative Agent for its own account.
held in such Special Reserve Account until withdrawn as provided in clause (f), (g) Whenever, at any time after the relevant Lenders have received from any other Lenders purchases of participations pursuant to this Section 1.14, the various Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received, provided, however, that in the event that such payment received by any Lenders is required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders.
or (h) Each Lender’s obligation to purchase participating interests pursuant to this Section 1.14 shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any Credit Agreement Party or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change below in the condition (financial or otherwise) or prospects of any Credit Agreement Party or any other Person, (iv) any breach of this Agreement or any other Credit Document by any Credit Agreement Party, any Lender, any Issuing Lender, any Bank Guaranty Issuer, any Agent, the Deposit Bank or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(i) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, (i) the relevant Borrower shall pay to each Lender granting any participations as required above, for the account of the respective Lender which has purchased such participations, any increased costs and indemnities (including, without limitation, pursuant to Sections 1.11, 1.12, 2A.06, 2B.06 and 4.04) to the same extent as if such Lender which has purchased such participations were the direct Lender as opposed to a participant therein, which increased costs shall be calculated without regard to Section 1.13, Section 13.04(a) or the penultimate sentence of Section 13.04(b) and (ii) each Lender which has sold such participations shall be entitled to receive from the relevant Borrower indemnification from and against any and all taxes imposed as a result of the sale of the participations pursuant to this Section 1.
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