Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit (each such amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is reimbursed therefor, at a rate per annum that shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to time. (b) The Borrower’s obligation to reimburse any payment under any Letter of Credit issued by any Letter of Credit Issuer as provided in Section 3.4(a) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit. (c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 10 contracts
Samples: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit (each such amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is reimbursed therefor, at a rate per annum that shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to time.
(b) The Borrower’s obligation obligations under this Section 3.4 to reimburse any payment under any Letter of Credit issued by any each Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity setoff, counterclaim or enforceability of any Letter of Credit or this Agreement, defense to payment that the Borrower or any term other Person may have or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit have had against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor the Administrative Agent or any of their Related PartiesLender (including in its capacity as an L/C Participant), shall have including any liability or responsibility by reason of or in connection with defense based upon the issuance or transfer failure of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with (each a “Drawing”) to conform to the terms thereof. The parties hereto expressly agree thatof the Letter of Credit, any nonapplication or misapplication by the beneficiary of the proceeds of such Drawing or any of the circumstances described in Sections 3.3(e)(i) to 3.3(e)(v), inclusive; provided that the absence Borrower shall not be obligated to reimburse any Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under the Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence or wilful misconduct on the part of the applicable such Letter of Credit Issuer (as finally determined by a final judgment of a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 5 contracts
Samples: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each the Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), for any payment or disbursement made by such the Letter of Credit Issuer under any Letter of Credit (each such amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such the Letter of Credit Issuer is reimbursed therefor, at a rate per annum that shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to time.
(b) The Borrower’s obligation obligations under this Section 3.4 to reimburse any payment the Letter of Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower or any other Person may have or have had against the Letter of Credit Issuer, the Administrative Agent or any Lender (including in its capacity as an L/C Participant), including any defense based upon the failure of any drawing under a Letter of Credit (each a “Drawing”) to conform to the terms of the Letter of Credit, any nonapplication or misapplication by the beneficiary of the proceeds of such Drawing or any of the circumstances described in Sections 3.3(e)(i) to 3.3(e)(v), inclusive; provided that the Borrower shall not be obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under the Letter of Credit issued by any it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer as provided in Section 3.4(a) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a final judgment of a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any the Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such the Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such the Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower it intends to reimburse such the Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 4 contracts
Samples: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each the respective Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit (each such amount so paid or disbursed until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date on which the Borrower is notified by such Letter of Credit Issuer of, such payment, payment or disbursement with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 3:00 P.M. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be 2% above the Applicable Base Rate Margin for Revolving Credit Loans plus the ABR Base Rate as in effect from time to timetime (plus an additional 2% per annum if not reimbursed by the third Business Day after the date of such notice of payment or disbursement), such interest also to be payable on demand.
(b) The Borrower’s obligation under this Section 1A.04 to reimburse any payment under any Letter of Credit issued by any the respective Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity setoff, counterclaim or enforceability of defense to payment which the Borrower may have or have had against any Letter of Credit or this AgreementIssuer, the Administrative Agent or any term or provision thereinLender, (ii) including, without limitation, any draft or other document presented defense based upon the failure of any drawing under a Letter of Credit proving to be forged, fraudulent or invalid in any respect conform to the terms of the Letter of Credit or any statement therein being untrue non-application or inaccurate in any respect, (iii) payment misapplication by the applicable beneficiary of the proceeds of such drawing; provided, however, that the Borrower shall not be obligated to reimburse such Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with omissions constituting willful misconduct or gross negligence on the terms part of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived determined by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined final judgment issued by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 2 contracts
Samples: Credit Agreement (Fairpoint Communications Inc), Credit Agreement (Fairpoint Communications Inc)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each the Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars U.S. dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement made by such the Letter of Credit Issuer under any Letter of Credit issued by it (each such amount so paid or disbursed until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on the date of, notice from the Letter of Credit Issuer of such payment, payment or disbursement with interest on the amount so paid or disbursed by such the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such the Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be 2% above the Applicable Base Rate Margin for Revolving Credit Loans plus the ABR Base Rate as in effect from time to timetime (plus an additional 2% per annum if not reimbursed by the third Business Day after the date of notice of such payment or disbursement), such interest to be payable on demand.
(b) The Borrower’s 's obligation under this Section 2.04 to reimburse any payment under any Letter of Credit issued by any the Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity setoff, counterclaim or enforceability of any defense to payment which the Borrower may have or have had against the Letter of Credit or this AgreementIssuer, the Administrative Agent, any Agent or any term or provision thereinBank, (ii) including, without limitation, any draft or other document presented defense based upon the failure of any drawing under a Letter of Credit proving to be forged, fraudulent or invalid in any respect conform to the terms of the Letter of Credit or any statement therein being untrue non-application or inaccurate in any respect, (iii) payment misapplication by the applicable beneficiary of the proceeds of such drawing; provided, however, that the Borrower shall not be obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with omissions constituting willful misconduct or gross negligence on the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control part of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 2 contracts
Samples: Credit Agreement (Pueblo Xtra International Inc), Credit Agreement (Pueblo Xtra International Inc)
Agreement to Repay Letter of Credit Drawings. (ai) The Borrower Each U.S. Borrower, in the case of a U.S. Facility Letter of Credit, hereby jointly and severally agrees, (ii) each U.S. Borrower, in the case of a Canadian Facility Letter of Credit issued for the account of a U.S. Borrower, hereby jointly and severally agrees and (iii) each Canadian Borrower, in the case of a Canadian Facility Letter of Credit issued for the account of a Canadian Borrower, hereby jointly and severally agrees, in each case, to reimburse each Letter of Credit IssuerIssuing Lender, by making payment to the Administrative Agent in U.S. Dollars (or, in the case of any unreimbursed payment made in a currency other than U.S. Dollars, the U.S. Dollar Equivalent of such payment or disbursement as determined by the respective Issuing Lender on the date of such payment or disbursement) in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement made by such Letter of Credit Issuer Issuing Lender under any Letter of Credit issued by it for the account of such U.S. Borrower or Canadian Borrower, as applicable (each such amount (or the U.S. Dollar Equivalent thereof, as the case may be), so paid until reimbursedreimbursed by such U.S. Borrower, or such Canadian Borrower, as applicable, an “Unpaid Drawing”), not later than one Business Day following receipt by any such U.S. Borrower or any such Canadian Borrower, as the case may be, of notice of such payment or disbursement (provided that no such notice shall be required to be given if a Default or an Event of Default under Section 11.01(g) or (h) shall have occurred and be continuing, in which case the Unpaid Drawing shall be due and payable immediately afterwithout presentment, and in demand, protest or notice of any event on kind (all of which are hereby waived by the date of, such paymentBorrowers)), with interest on the amount so paid or disbursed by such Letter of Credit IssuerIssuing Lender, to the extent not reimbursed prior to 5:00 p.m. 12:00 Noon (New York City time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is Issuing Lender was reimbursed thereforby such U.S. Borrower or such Canadian Borrower, as applicable, at a rate per annum that shall at all times be 2% above equal to the Applicable Margin for Revolving Credit Loans plus the ABR Base Rate as in effect from time to time plus the Applicable Margin as in effect from time to time for U.S. Dollar Denominated Revolving Loans that are maintained as Base Rate Loans; provided, however, to the extent such amounts are not reimbursed prior to 12:00 Noon (New York City time.
) on the third Business Day following the receipt by any such U.S. Borrower or any such Canadian Borrower, as applicable, of notice of such payment or disbursement or following the occurrence of a Default or an Event of Default under Section 11.01(g) or (b) The h), interest shall thereafter accrue on the amounts so paid or disbursed by such Issuing Lender (and until reimbursed by such U.S. Borrower or such Canadian Borrower’s obligation , as applicable, at a rate per annum equal to reimburse any payment the Base Rate as in effect from time to time plus the Applicable Margin for U.S. Dollar Denominated Revolving Loans that are maintained as Base Rate Loans as in effect from time to time plus 2%, with such interest to be payable on demand. Each Issuing Lender shall give the U.S. Borrower or the Canadian Borrowers, or as the case may be, prompt written notice of each Drawing under any Letter of Credit issued by it for the account of such U.S. Borrower or such Canadian Borrower, as the case may be; provided that the failure to give any Letter such notice shall in no way affect, impair or diminish the obligations of any such Borrower hereunder.
(b) The joint and several obligations of such U.S. Borrowers or such Canadian Borrowers, as the case may be, under this Section 3.05 to reimburse each Issuing Lender with respect to drafts, demands and other presentations for payment under Letters of Credit Issuer as provided issued by it (each, a “Drawing”) (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of any setoff, counterclaim or defense to payment which Holdings, any Borrower or any other Subsidiary of Holdings may have or have had against any Lender under the respective Tranche (i) including in its capacity as an Issuing Lender or as a Participant under such Tranche), including, without limitation, any lack of validity or enforceability defense based upon the failure of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented drawing under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by conform to the applicable terms of the Letter of Credit Issuer or any nonapplication or misapplication by the beneficiary of the proceeds of such Drawing; provided, however, that no Borrower shall be obligated to reimburse any Issuing Lender for any wrongful payment made by such Issuing Lender under a Letter of Credit against presentation issued by it as a result of a draft acts or other document that does not comply with the terms of such Letter of Credit, omissions constituting willful misconduct or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer such Issuing Lender (as finally determined by a court of competent jurisdictionjurisdiction in a final and non-appealable decision), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 2 contracts
Samples: Abl Credit Agreement (Smurfit Stone Container Corp), Abl Credit Agreement (Smurfit Stone Container Corp)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower Company hereby agrees to reimburse (or cause any Subsidiary for whose account a Letter of Credit was issued to reimburse) each Letter of Credit Issuer, by making payment directly to the Administrative Agent in Dollars such Letter of Credit Issuer in immediately available funds at the payment office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))such Letter of Credit Issuer, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit (each such amount so paid or disbursed until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on the date ofon which, such paymentLetter of Credit Issuer notifies the Company (or any such Subsidiary for whose account such Letter of Credit was issued) of such payment or disbursement (which notice to the Company (or such Subsidiary) shall be delivered reasonably promptly after any such payment or disbursement), such payment to be made in Dollars (and in the amount which is the Dollar equivalent of any such payment or disbursement made or denominated in an Alternative Currency), with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York timelocal time at the payment office of the Letter of Credit Issuer) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be 2the rate then applicable to Revolving Loans which are Prime Rate Loans (plus an additional 3% above per annum if not reimbursed by the Applicable Margin for Revolving Credit Loans plus third Business Day after the ABR as in effect from time date of such payment or disbursement), any such interest also to timebe payable on demand.
(b) The Borrower’s Company's obligation under this section 3.3 to reimburse any payment under any Letter of Credit issued by any reimburse, or cause a Subsidiary to reimburse, each Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity setoff, counterclaim or enforceability of any defense to payment which the Company may have or have had against such Letter of Credit or this AgreementIssuer, the Administrative Agent, any other Letter of Credit Issuer or any term or provision thereinLender, (ii) including, without limitation, any draft or other document presented defense based upon the failure of any drawing under a Letter of Credit proving to be forged, fraudulent or invalid in any respect conform to the terms of the Letter of Credit or any statement therein being untrue non- application or inaccurate in any respect, (iii) payment misapplication by the applicable beneficiary of the proceeds of such drawing, provided, however that the Company shall not be obligated to reimburse, or cause a Subsidiary to reimburse, a Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with the terms of such Letter of Credit, omissions constituting willful misconduct or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Samples: Credit Agreement (Safety Components International Inc)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each the Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Funding Office, for any payment or disbursement made by such the Letter of Credit Issuer under any Letter of Credit (each such amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such the Letter of Credit Issuer is reimbursed therefor, at a rate per annum that shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to time.
(b) The Borrower’s obligation obligations under this Section 3.4 to reimburse any payment the Letter of Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower or any other Person may have or have had against the Letter of Credit Issuer, the Administrative Agent or any Lender (including in its capacity as an L/C Participant), including any defense based upon the failure of any drawing under a Letter of Credit (each a “Drawing”) to conform to the terms of the Letter of Credit, any nonapplication or misapplication by the beneficiary of the proceeds of such Drawing or any of the circumstances described in Sections 3.3(e)(i) to 3.3(e)(v), inclusive; provided that the Borrower shall not be obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under the Letter of Credit issued by any it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer as provided in Section 3.4(a) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a final judgment of a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any the Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such the Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such the Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower it intends to reimburse such the Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Funding Office. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each the applicable Letter of Credit IssuerIssuer in Dollars (or, in respect of Letters of Credit denominated in an Alternative Currency, such Alternative Currency) with respect to any drawing under any Letter of Credit, by making payment payment, whether with its own funds, with the proceeds of Revolving Credit Loans or any other source, to the Administrative Agent in Dollars for the account of the Letter of Credit Issuer in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))funds, for any payment or disbursement made by such the applicable Letter of Credit Issuer under any Letter of Credit issued by it (with respect to each such amount so paid under a Letter of Credit until reimbursed, an a “Unpaid Drawing”) immediately after(i) within one Business Day of the date of such payment or disbursement (or within two Business Days from such date of payment or disbursement, and in any event if the aggregate Revolving Credit Exposures of the applicable Class of Lenders equals the Total Revolving Credit Commitments of such Class of Lenders on the date ofof payment or disbursement), if the applicable Letter of Credit Issuer provides notice to the Borrower of such paymentpayment or disbursement prior to 11:00 a.m. (New York City time) on such next succeeding Business Day after the date of such payment or disbursement or (ii) if such notice is received after such time, with interest on the amount so paid next Business Day from the -135- #95203802v2296160609v3 #96160609v5
(b) The obligations of the Borrower under this Section 3.4 to reimburse the applicable Letter of Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any set-off, counterclaim or disbursed by defense to payment that the Borrower or any other Person may have or have had against such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. Administrative Agent or any Lender (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such in its capacity as a Letter of Credit Issuer is reimbursed thereforParticipant), at a rate per annum that shall at all times be 2% above including any defense based upon the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to time.
(b) The Borrower’s obligation to reimburse any payment under any Letter of Credit issued by any Letter of Credit Issuer as provided in Section 3.4(a) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability failure of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented drawing under a Letter of Credit proving (each, a “Drawing”) to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with conform to the terms of such Letter of Credit, Credit or (iv) any other event non-application or circumstance whatsoever, whether or not similar to any misapplication by the beneficiary of the foregoing, proceeds of such Drawing; provided that might, but for the provisions of this Section 3.4, constitute Borrower shall not be obligated to reimburse a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor Issuer for any of their Related Parties, shall have any liability or responsibility wrongful payment made by reason of or in connection with the issuance or transfer of any such Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of Issuer under the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make issued by it as a drawing thereunder)result of acts or omissions constituting willful misconduct, any error in interpretation of technical terms bad faith or any consequence arising from causes beyond gross negligence on the control part of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, determined in the absence final, non-appealable judgment of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.-136- #95203802v2296160609v3 #96160609v5
Appears in 1 contract
Samples: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Agreement to Repay Letter of Credit Drawings. (a) Upon the receipt by the Issuing Bank of any Drawing from a beneficiary under a Letter of Credit, the Issuing Bank promptly will provide the Borrower with telecopy notice thereof. The Borrower hereby agrees to reimburse each Letter of Credit Issuer, the Issuing Bank by making payment to the Administrative Agent in Dollars in immediately available funds in Dollars or the Alternate Currency, as the case may be, in which such Letter of Credit was denominated, at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Agent's Domestic Lending Office, for any payment or disbursement made by such Letter of Credit Issuer the Issuing Bank under any Letter of Credit issued by it (each such amount so paid until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such Letter of Credit Issuerthe Issuing Bank, to the extent not reimbursed prior to 5:00 2:00 p.m. (New York Toronto time) on the date of such payment or disbursementpayment, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer reimbursement is reimbursed thereformade as provided above, at a rate per annum that shall at all times be equal to the lesser of (x) 2% above the Applicable Margin for Revolving Credit Canadian Prime Rate or (y) the Highest Lawful Rate, such interest to be payable on demand. Prior to the Maturity Date, unless otherwise paid by the Borrower, such Unpaid Drawing may (and, if the Majority Banks so desire, shall automatically), subject to satisfaction of the conditions precedent set forth in Sections 2.3 and 8, be paid with the proceeds of Loans plus which shall bear interest at an annual rate equal to the ABR as Canadian Prime Rate, which rate the Borrower may in effect from time its discretion continue or convert pursuant to timeSection 3.1(a)(ii).
(b) The Borrower’s obligation 's obligations under this Section 2.6 to reimburse any payment under any Letter of Credit issued by any Letter of Credit Issuer as provided the Issuing Bank with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever (except as provided below with respect to the gross negligence or willful misconduct of the Issuing Bank) and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against any Bank (including the Issuing Bank in its capacity as the issuer of a Letter of Credit or any Bank as a participant therein), including any defense based upon the failure of any drawing under a Letter of Credit (each a "Drawing") to conform to the terms of the Letter of Credit (other than a defense based upon the gross negligence or willful misconduct of the Issuing Bank in determining whether such Drawing conforms to the terms of the Letter of Credit) or any non-application or misapplication by the beneficiary of the proceeds of such Drawing, including any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any other Person may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Issuing Bank, any Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any term unrelated transactions (including any underlying transaction between the Borrower or provision therein, any other Person and the beneficiary named in any such Letter of Credit);
(iiiii) any draft draft, certificate or any other document presented under a the Letter of Credit proving to be forged, fraudulent fraudulent, invalid or invalid insufficient in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or ;
(iv) the surrender or impairment of any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but security for the provisions of this Section 3.4, constitute a legal performance or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective observance of any of the circumstances referred to in terms of any of the preceding sentence)Loan Documents;
(v) the occurrence of any Default or Event of Default; or
(vi) any other circumstance which might otherwise constitute a defense available to, or any errora discharge of, omission, interruption, loss the Borrower (other than the gross negligence or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control willful misconduct of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Issuing Bank).
(c) The Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply also agrees with the terms thereof. The parties hereto expressly agree Issuing Bank, the Agent and the Banks that, in the absence of gross negligence or wilful willful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereofIssuing Bank, the parties agree thatIssuing Bank shall not be responsible for, with respect to and the Borrower's reimbursement obligations under Section 2.6(a) shall not be affected by, among other things, the validity or genuineness of documents presented which appear on their face or of any endorsements thereon, even though such documents shall in fact prove to be in substantial compliance with invalid, fraudulent or forged or any dispute between or among the terms Borrower or any other Party and the beneficiary of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under or any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject other party to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a may be transferred or any claims whatsoever of the Borrower or any other Party against any beneficiary of such Letter of Credit or any such transferee.
(d) The Issuing Bank shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, of (i) such except for errors or omissions caused by the Issuing Bank's gross negligence or willful misconduct. The Borrower agrees that any action taken or omitted by the Issuing Bank under or in connection with any Letter of Credit Issuer’s intention or the related drafts or documents, if done in the absence of gross negligence or willful misconduct and, except as otherwise provided by this Agreement or any applicable Application, in accordance with the standards of care specified in the Uniform Customs and Practice for Documentary Credits (1994 Revision), International Chamber of Commerce, Publication No. 500 (and any subsequent revisions thereof approved by a Congress of the International Chamber of Commerce and adhered to honor by such drawing and Issuing Bank) (iithe "UCP") shall not result in any liability of the amount of such drawing. Unless instructed by Issuing Bank to the Borrower by 10:30 a.m. (New York time) on such Business Day or any other Person. It is the intent of the parties hereto that the Borrower intends to reimburse such Issuing Bank shall not have any liability under this Section 2.6 for the ordinary negligence of the Issuing Bank. Each Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified governed by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid DrawingUCP.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) Upon the receipt by the Bank of any Drawing from a beneficiary under a Letter of Credit, the Bank promptly will provide the Borrower with telecopy notice thereof. The Borrower hereby agrees to reimburse each Letter of Credit Issuer, the Bank by making payment to the Administrative Agent in Dollars Bank in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit (each such amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is reimbursed therefor, at a rate per annum that shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to time.funds
(b) The Borrower’s obligation 's obligations under this Section 2.5 to reimburse any payment under any Letter of Credit issued by any Letter of Credit Issuer as provided the Bank with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever (except as provided below with respect to the gross negligence or willful misconduct of the Bank) and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against the Bank, including any defense based upon the failure of any drawing under a Letter of Credit (each a "Drawing") to conform to the terms of the Letter of Credit (other than a defense based upon the gross negligence or willful misconduct of the Bank in determining whether such Drawing conforms to the terms of the Letter of Credit) or any non-application or misapplication by the beneficiary of the proceeds of such Drawing, including any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other International Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any term unrelated transactions (including any underlying transaction between the Borrower or provision therein, any other Person and the beneficiary named in any such Letter of Credit);
(iiiii) any draft draft, certificate or any other document presented under a the Letter of Credit proving to be forged, fraudulent fraudulent, invalid or invalid insufficient in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or ;
(iv) the surrender or impairment of any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but security for the provisions of this Section 3.4, constitute a legal performance or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective observance of any of the circumstances referred to in terms of any of the preceding sentence)International Loan Documents;
(v) the occurrence of any Default or Event of Default; or
(vi) any other circumstance which might otherwise constitute a defense available to, or any errora discharge of, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit IssuerBorrower; provided that none of the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability is attributable to the gross negligence or willful misconduct of the Bank.
(c) The Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply also agrees with the terms thereof. The parties hereto expressly agree Bank that, in the absence of gross negligence or wilful willful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereofBank, the parties agree thatBank shall not be responsible for, with respect to and the Borrower's reimbursement obligations under Section 2.6(a) shall not be affected by, among other things, the validity or genuineness of documents presented which appear on their face or of any endorsements thereon, even though such documents shall in fact prove to be in substantial compliance with invalid, fraudulent or forged or any dispute between or among the terms Borrower or any other Person and the beneficiary of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under or any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject other party to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a may be transferred or any claims whatsoever of the Borrower or any other Person against any beneficiary of such Letter of Credit or any such transferee.
(d) The Bank shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, of (i) such except for errors or omissions caused by the Bank's gross negligence or willful misconduct. The Borrower agrees that any action taken or omitted by the Bank under or in connection with any Letter of Credit Issuer’s intention or the related drafts or documents, if done in the absence of gross negligence or willful misconduct and in accordance with the standards of care specified in the Uniform Customs and Practice for Documentary Credits (1994 Revision), International Chamber of Commerce, Publication No. 500 (and any subsequent revisions thereof approved by a Congress of the International Chamber of Commerce and adhered to honor by such drawing and (iiBank) and, to the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loansextent not inconsistent therewith, the Administrative Agent Uniform Commercial Code of the State of Texas, shall promptly notify each Lender not result in any liability of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans Bank to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))or any other Person. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid DrawingIT IS THE INTENT OF THE PARTIES HERETO THAT THE BANK SHALL NOT HAVE ANY LIABILITY UNDER THIS SECTION 2.5 FOR THE ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE OF THE BANK.
Appears in 1 contract
Samples: International Revolving Loan Agreement (Natco Group Inc)
Agreement to Repay Letter of Credit Drawings. (a1) The Each Borrower hereby agrees to reimburse each Letter of Credit Issuerthe Issuing Bank, by making payment to the Administrative Agent in U.S. Dollars and in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))funds, for any payment or disbursement made by such Letter of Credit Issuer the Issuing Bank under any Letter of Credit issued at the request of such Borrower (each such amount so paid until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such Letter of Credit Issuerthe Issuing Bank, to the extent not reimbursed prior to 5:00 1:00 p.m. (New York Philadelphia time) on the date of such payment or disbursementpayment, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer reimbursement is reimbursed thereformade as provided above, at a rate per annum that shall at all times equal to the Alternate Base Rate plus 200 basis points, such interest to be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to timepayable promptly following demand.
(b2) The Borrower’s obligation obligations of each Borrower under this Section 2.4(e) to reimburse any payment under any Letter of Credit issued by any Letter of Credit Issuer as provided the Issuing Bank with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of any setoff, counterclaim or defense to payment which any Borrower may have or have had against any Bank (i) any lack of validity including in its capacity as the Issuing Bank or enforceability of as a participant in any Letter of Credit Credit), including, without limitation, any defense based upon any non-application or this Agreement, or misapplication by the beneficiary of the proceeds of any term or provision therein, (ii) any draft or other document presented drawing under a Letter of Credit proving (each, a "Drawing"); provided, however, that no Borrower shall be obligated to be forged, fraudulent or invalid in reimburse the Issuing Bank for any respect or any statement therein being untrue or inaccurate in any respect, (iii) wrongful payment made by the applicable Letter of Credit Issuer Issuing Bank under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with omissions constituting wilful misconduct or gross negligence on the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any part of the foregoing, that might, but for Issuing Bank.
(3) On the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff againstRevolving Credit Facility Termination Date, the Borrower’s obligations hereunder. Neither Borrowers shall deliver to the Administrative Agent, Agent cash or U.S. Treasury Bills with maturities of not more than ninety (90) days from the Lenders nor any Letter date of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or delivery (discounted in connection accordance with the issuance or transfer of any Letter of Credit or any payment or failure customary banking practice to make any payment thereunder present value to determine amount) in an amount equal at all times to one hundred five percent (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control 105%) of the Letter of Credit Issuer; provided that Outstandings, such cash or U.S. Treasury Bills and all interest earned thereon to constitute cash collateral for the foregoing shall not be construed Borrowers' reimbursement obligation with respect to excuse the Letter all Letters of Credit Issuer from liability outstanding on the Revolving Credit Facility Termination Date. If such cash collateral or U.S. Treasury Bills has not been deposited within five (5) days after the date required, one or more of the Banks shall be entitled to the charge any account maintained by any Borrower with such Bank or Banks to the extent of any direct damages (as opposed necessary to specialcreate such cash collateral. Any cash collateral deposited under this paragraph, indirectand all interest earned thereon, consequential or punitive damages, claims in respect of which are hereby waived shall be held by the Borrower to Agent and invested and reinvested at the extent permitted by applicable law) suffered by expense and the Borrower that are caused by written direction of the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree thatCompany, in U.S. Treasury Bills with maturities of no more than ninety (90) days from the absence date of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Creditinvestment.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), Issuing Bank for any payment or disbursement made by such Letter of Credit Issuer the Issuing Bank under any Letter of Credit (each such amount so paid or disbursed until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on within one Business Day after the date of, of such paymentpayment or disbursement, with interest on the amount so paid or disbursed by such Letter of Credit Issuerthe Issuing Bank, if and to the extent not reimbursed prior to 5:00 p.m. (New York 2:00 P.M., Chicago time) , on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is the Issuing Bank was reimbursed therefor, therefor at a rate per annum which shall be the rate of interest that shall at all times would be 2% above the Applicable Margin for Revolving Credit applicable to Base Rate Loans plus the ABR as in effect from time to timeduring such period.
(b) The Borrower’s obligation Borrower s obligations under this Section 3.04 to reimburse any payment under any Letter the Issuing Bank with respect to Unpaid Drawings in respect of Letters of Credit issued by any Letter of Credit Issuer as provided (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of any set off, counterclaim or defense to payment which the Borrower may have or have had against any Bank (iincluding the Issuing Bank in its capacity as issuer of the Letter of Credit or as a Bank), including, without limitation, any defense based upon the failure of any drawing under a Letter of Credit (each a "Drawing") to conform to the terms of the Letter of Credit or any lack non-application or misapplication by the beneficiary of validity the proceeds of such Drawing. The Borrower assumes all risks as a result of the acts or enforceability omissions of the user of any Letter of Credit and all risks of the misuse of any Letter of Credit. The Issuing Bank in its capacity as issuer of any Letter of Credit shall not be liable:
(i) for the form, validity, sufficiency, accuracy, genuineness or this Agreementlegal effect of any document reasonably believed to be genuine by the Person examining such document in connection with any Letter of Credit, even if it should prove to be in any respect invalid, insufficient, inaccurate, fraudulent or any term or provision therein, forged,
(ii) for the validity or insufficiency of any draft instrument transferring or other document presented under a assigning or purporting to assign any Letter of Credit proving to be forged, fraudulent or invalid in any respect the rights and benefits thereunder or any statement therein being untrue or inaccurate in any respect, the proceeds thereof,
(iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft for clerical, administrative or other document that does not comply with the terms ministerial errors, such as failure of such any draft to bear any reference or adequate reference to any applicable Letter of Credit, or failure of any Person to note the amount of any draft on any applicable Letter of Credit or to surrender or take up any applicable Letter of Credit or to send forward any such document apart from drafts as required by the terms of any Letter of Credit, each of which provisions, if contained in any Letter of Credit, may be waived by the Issuing Bank,
(iv) for errors, omissions, interruptions or delays in transmissions or delivery of any other event message, by mail, telegraph, telex or circumstance whatsoeverotherwise,
(v) for any error, whether neglect, default, suspension or not similar to insolvency of any correspondent,
(vi) for errors in translation or for errors in interpretation of technical terms,
(vii) for any loss or delay in the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal transmission or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer otherwise of any Letter of Credit or any payment document or failure to make any payment thereunder draft in connection therewith or the proceeds thereof,
(irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or viii) for any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed Issuing Bank, or
(ix) for any other act or omission to excuse the Letter of Credit Issuer from liability to the Borrower to the extent act or delay of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment kind by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by Bank (including the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit LoansIssuing Bank), the Administrative Agent shall promptly notify each Lender or any other Person which might, but for the provisions of such drawing and this subsection (vii), constitute a legal or equitable discharge of or defense to the amount Borrower's obligations hereunder. Nothing in this subsection (b) is intended to limit the right of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated the Borrower to make ABR Loans a claim against the Issuing Bank for damages as contemplated by the proviso to the Borrower in the amount first sentence of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing3.05.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each the respective Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit (each such amount so paid or disbursed until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on within two Business Days of the date on which the Borrower is notified by such Letter of Credit Issuer of, such payment, payment or disbursement with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 3:00 P.M. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be 2% above the Applicable Base Rate Margin for Revolving Credit Loans plus the ABR Base Rate as in effect from time to timetime (plus an additional 2% per annum if not reimbursed by the third Business Day after the date of such notice of payment or disbursement), such interest also to be payable on demand.
(b) The Borrower’s obligation under this Section 1A.04 to reimburse any payment under any Letter of Credit issued by any the respective Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity setoff, counterclaim or enforceability of defense to payment which the Borrower may have or have had against any Letter of Credit or this AgreementIssuer, the Administrative Agent or any term or provision thereinLender, (ii) including, without limitation, any draft or other document presented defense based upon the failure of any drawing under a Letter of Credit proving to be forged, fraudulent or invalid in any respect conform to the terms of the Letter of Credit or any statement therein being untrue non-application or inaccurate in any respect, (iii) payment misapplication by the applicable beneficiary of the proceeds of such drawing; provided, however, that the Borrower shall not be obligated to reimburse such Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with omissions constituting willful misconduct or gross negligence on the terms part of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived determined by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined final judgment issued by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each Letter of Credit Issuerthe respective Issuing Bank, by making payment to the Administrative Agent Agent, in Dollars (or, in the case of any payment or disbursement made by the Issuing Bank in any currency other than Dollars, of the Dollar Equivalent of such payment or disbursement as determined by the Issuing Bank on the date of such payment or disbursement) and in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement made by such Letter of Credit Issuer it under any Letter of Credit (each such amount amount, so paid until reimbursed, an “"Unpaid Drawing”) immediately after"), and in any event on no later than one Business Day after the date of, Administrative Agent notifies the Borrower of such paymentpayment or disbursement, with interest on the amount so paid or disbursed by such Letter of Credit IssuerIssuing Bank, to the extent not reimbursed prior to 5:00 p.m. 12:00 Noon (New York Chicago time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is reimbursed therefor, at a rate per annum that shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to time.and
(b) The Borrower’s obligation obligations of the Borrower under this Section 2.04 to reimburse any payment under any Letter the respective Issuing Bank with respect to drawings on Letters of Credit issued by any Letter of Credit Issuer as provided (each, a "Drawing") (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against any Bank (i) any lack including in its capacity as issuer of validity or enforceability of any the Letter of Credit or this Agreementas Participant), or any term nonapplication or provision thereinmisapplication by the beneficiary of the proceeds of such Drawing, (ii) the respective Issuing Bank's only obligation to the Borrower being to confirm that any draft or other document presented documents required to be delivered under a such Letter of Credit proving appear to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document have been delivered and that does not they appear to substantially comply on their face with the terms requirements of such Letter of Credit, . Any action taken or (iv) omitted to be taken by any other event Issuing Bank under or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor in connection with any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability if taken or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, omitted in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction)willful misconduct, shall not create for such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of Issuing Bank any notice or information resulting liability to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of CreditBorrower.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Samples: Credit Agreement (Howmet Corp /New/)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit issued by it (each such amount so paid or disbursed until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on no later than one Business Day following the date of, of such paymentpayment or disbursement, with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be 2% above the Applicable Base Rate Margin for Revolving Credit Loans plus in excess of the ABR Base Rate as in effect from time to timetime (plus an additional 2% per annum if not reimbursed by the third Business Day after the date of such payment or disbursement), such interest also to be payable on demand. Each Letter of Credit Issuer shall provide the Borrower prompt notice of any payment or disbursement made by it under any Letter of Credit issued by it, although the failure of, or delay in, giving any such notice shall not release or diminish the obligations of the Borrower under this Section 2.3(a) or under any other Section of this Agreement.
(b) The Borrower’s 's obligation under this Section 2.3 to reimburse any payment the respective Letter of Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower or any of its Subsidiaries may have or have had against such Letter of Credit Issuer, the Agent or any Lender, including, without limitation, any defense based upon the failure of any drawing under a Letter of Credit issued by it to conform to the terms of the Letter of Credit or any nonapplication or misapplication by the beneficiary of the proceeds of such drawing; provided, however, that the Borrower shall not be obligated to reimburse such Letter of Credit Issuer as provided in Section 3.4(a) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under for any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) wrongful payment made by the applicable such Letter of Credit Issuer under a Letter of Credit against presentation issued by it as a result of a draft acts or other document that does not comply with the terms of such Letter of Credit, omissions constituting willful misconduct or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each respective Letter of Credit Issuer, by making payment to the Administrative Agent for the account of such Letter of Credit Issuer in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit issued by it (each such amount so paid or disbursed until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date of, notice from such payment, Letter of Credit Issuer of such payment or disbursement with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR Base Rate as in effect from time to timetime (plus an additional 2% per annum if not reimbursed by the third Business Day after the date of notice of such payment or disbursement), such interest to be payable on demand.
(b) The Borrower’s obligation under this Section 2.04 to reimburse any payment under any Letter of Credit issued by any each respective Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack setoff, counterclaim or defense to payment which the Borrower, any of validity its Subsidiaries or enforceability of any Permitted Joint Venture may have or have had against such Letter of Credit or this AgreementIssuer, the Administrative Agent, any Syndication Agent or any term or provision thereinBank, (ii) including, without limitation, any draft or other document presented defense based upon the failure of any drawing under a Letter of Credit proving to be forged, fraudulent or invalid in any respect conform to the terms of the Letter of Credit or any statement therein being untrue non-application or inaccurate in any respect, (iii) payment misapplication by the applicable beneficiary of the proceeds of such drawing or any amendment or waiver or any consent to or departure from a Letter of Credit or any other circumstance whatsoever in making or failing to make payment under a Letter of Credit; provided, however, that the Borrower shall not be obligated to reimburse a Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with the terms of such Letter of Credit, omissions constituting willful misconduct or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Samples: Credit Agreement (Ametek Inc/)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse (or cause any Subsidiary for whose account a Letter of Credit was issued to reimburse) each Letter of Credit Issuer, by making payment directly to the Administrative Agent in Dollars such Letter of Credit Issuer in immediately available funds at the payment office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))such Letter of Credit Issuer, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit (each such amount so paid or disbursed until reimbursed, an “Unpaid Drawing”"UNPAID DRAWING") immediately after, and in any event on the date ofon which, such paymentLetter of Credit Issuer notifies the Borrower (or any such Subsidiary for whose account such Letter of Credit was issued) of such payment or disbursement (which notice to the Borrower (or such Subsidiary) shall be delivered reasonably promptly after any such payment or disbursement), such payment to be made in Dollars (and in the amount which is the Dollar equivalent of any such payment or disbursement made or denominated in an Alternative Currency), with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York timelocal time at the payment office of the Letter of Credit Issuer) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be 2the rate then applicable to General Revolving Loans which are Prime Rate Loans (plus an additional 3% above per annum if not reimbursed by the Applicable Margin for Revolving Credit Loans plus third Business Day after the ABR as in effect from time date of such payment or disbursement), any such interest also to timebe payable on demand.
(b) The Borrower’s 's obligation under this section 3.3 to reimburse any payment under any Letter of Credit issued by any reimburse, or cause a Subsidiary to reimburse, each Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity setoff, counterclaim or enforceability of any defense to payment which the Borrower may have or have had against such Letter of Credit or this AgreementIssuer, the Administrative Agent, any other Letter of Credit Issuer or any term or provision thereinLender, (ii) including, without limitation, any draft or other document presented defense based upon the failure of any drawing under a Letter of Credit proving to be forged, fraudulent or invalid in any respect conform to the terms of the Letter of Credit or any statement therein being untrue non-application or inaccurate in any respect, (iii) payment misapplication by the applicable beneficiary of the proceeds of such drawing, PROVIDED, HOWEVER that the Borrower shall not be obligated to reimburse, or cause a Subsidiary to reimburse, a Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with the terms of such Letter of Credit, omissions constituting willful misconduct or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Samples: Credit Agreement (Value City Department Stores Inc /Oh)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each Letter of Credit Issuerthe respective Issuing Bank, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement made by such Letter of Credit Issuer Issuing Bank under any Letter of Credit (each such amount amount, so paid until reimbursed, an “"Unpaid Drawing”"), by 1.00 P.M. (New York time) immediately after, and in any event on the Business Day immediately succeeding the date of, of such paymentpayment or disbursement, with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is reimbursed therefor, at a rate per annum that shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to time.by
(b) The Borrower’s obligation obligations of the Borrower under this Section 2.04 to reimburse any payment under any Letter the respective Issuing Bank with respect to drawings on Letters of Credit issued by any Letter of Credit Issuer as provided (each, a "Drawing") (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of any setoff, counterclaim or defense to payment which the Borrower or any of its Subsidiaries may have or have had against any Lender (i) any lack including in its capacity as issuer of validity or enforceability of any the Letter of Credit or this Agreementas Participant), or any term nonapplication or provision thereinmisapplication by the beneficiary of the proceeds of such Drawing, (ii) the respective Issuing Bank's only obligation to the Borrower being to confirm that any draft or other document presented documents required to be delivered under a such Letter of Credit proving appear to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document have been delivered and that does not they appear to substantially comply on their face with the terms requirements of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar . Subject to any of the foregoing, that might, but for the provisions of this Section 3.4the immediately preceding sentence, constitute a legal any action taken or equitable discharge of, omitted to be taken by any Issuing Bank under or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor in connection with any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability if taken or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, omitted in the absence of gross negligence or wilful willful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), shall not create for such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of Issuing Bank any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans resulting liability to the Borrower in the amount of such Lender’s Revolving or any other Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid DrawingParty.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) Upon the receipt by the Bank of any Drawing from a beneficiary under a Letter of Credit, the Bank promptly will provide the Borrowers with telecopy notice thereof. The Borrower Borrowers hereby agrees agree to reimburse each Letter of Credit Issuer, the Bank by making payment to the Administrative Agent in Dollars Bank in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))office, for any payment or disbursement made by such Letter of Credit Issuer the Bank under any Letter of Credit issued by it (each such amount so paid until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such Letter of Credit Issuerthe Bank, to the extent not reimbursed prior to 5:00 2:00 p.m. (New York Central time) on the date of such payment or disbursementpayment, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer reimbursement is reimbursed thereformade as provided above, at a rate per annum equal to the Highest Lawful Rate, such interest to be payable on demand. Unless otherwise paid by the Borrowers, such Unpaid Drawing may (and, if the Bank so desires, shall automatically, provided that the Bank give notice thereof to Borrowers promptly thereafter), subject to satisfaction of the conditions precedent set forth in Section 2.3 and Article VII, be paid with the proceeds of Loans which shall bear interest at all times be 2% above an annual rate equal to the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to timeBase Rate.
(b) The Borrower’s obligation Borrowers' obligations under this Section 2.5 to reimburse any payment under any Letter of Credit issued by any Letter of Credit Issuer as provided the Bank with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever (except as provided below with respect to the gross negligence or willful misconduct of the Bank) and irrespective of any setoff, counterclaim or defense to payment which the Borrowers may have or have had against the Bank, including any defense based upon the failure of any drawing under a Letter of Credit (each a "Drawing") to conform to the terms of the Letter of Credit (other than a defense based upon the gross negligence or willful misconduct of the Bank in determining whether such Drawing conforms to the terms of the Letter of Credit) or any non-application or misapplication by the beneficiary of the proceeds of such Drawing, including any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other International Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrowers or any or some of them may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any term unrelated transactions (including any underlying transaction between the Borrowers or provision therein, any or some of them or any other Person and the beneficiary named in any such Letter of Credit);
(iiiii) any draft draft, certificate or any other document presented under a the Letter of Credit proving to be forged, fraudulent fraudulent, invalid or invalid insufficient in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or ;
(iv) the surrender or impairment of any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but security for the provisions of this Section 3.4, constitute a legal performance or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective observance of any of the circumstances referred to in terms of any of the preceding sentence)International Loan Documents;
(v) the occurrence of any Default or Event of Default; or
(vi) any other circumstance which might otherwise constitute a defense available to, or any errora discharge of, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms the Borrowers or any consequence arising from causes beyond the control or some of the Letter of Credit Issuerthem; provided that none of the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability is attributable to the Borrower to gross negligence or willful misconduct of the extent Bank.
(c) Each of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply Borrowers also agree with the terms thereof. The parties hereto expressly agree Bank that, in the absence of gross negligence or wilful willful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereofBank, the parties agree thatBank shall not be responsible for, with respect to and the Borrowers' reimbursement obligations under Section 2.5(a) shall not be affected by, among other things, the validity or genuineness of documents presented which appear on their face or of any endorsements thereon, even though such documents shall in fact prove to be in substantial compliance with invalid, fraudulent or forged or any dispute between or among the terms Borrowers or any or some of a Letter them or any other Person and the beneficiary of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under or any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject other party to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a may be transferred or any claims whatsoever of the Borrowers or any or some of them or any other Person against any beneficiary of such Letter of Credit or any such transferee.
(d) The Bank shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, of (i) such except for errors or omissions caused by the Bank's gross negligence or willful misconduct. The Borrowers agree that any action taken or omitted by the Bank under or in connection with any Letter of Credit Issuer’s intention or the related drafts or documents, if done in the absence of gross negligence or willful misconduct and in accordance with the standards of care specified in the Uniform Customs and Practice for Documentary Credits (1994 Revision), International Chamber of Commerce, Publication No. 500 (and any subsequent revisions thereof approved by a Congress of the International Chamber of Commerce and adhered to honor by such drawing and (iiBank) and, to the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loansextent not inconsistent therewith, the Administrative Agent Uniform Commercial Code of the State of Texas, shall promptly notify each Lender not result in any liability of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans Bank to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Borrowers or any other Person. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid DrawingIT IS THE INTENT OF THE PARTIES HERETO THAT THE BANK SHALL NOT HAVE ANY LIABILITY UNDER THIS SECTION 2.5 FOR THE ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE OF THE BANK.
Appears in 1 contract
Samples: International Revolving Credit Agreement (Natco Group Inc)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), for any payment or disbursement made by such Letter of Credit Issuer under any such Letter of Credit (each such amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is reimbursed therefor, at a rate per annum that shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to time.
(b) The Borrower’s obligation obligations under this Section 3.4 to reimburse each Letter of Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower or any other Person may have or have had against such Letter of Credit Issuer, the Administrative Agent or any Lender (including in its capacity as an L/C Participant), including any defense based upon the failure of any drawing under a Letter of Credit (each a “Drawing”) to conform to the terms of the Letter of Credit, any nonapplication or misapplication by the beneficiary of the proceeds of such Drawing or any of the circumstances described in Sections 3.3(e)(i) to 3.3(e)(v), inclusive; provided that the Borrower shall not be obligated to reimburse any Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under any the Letter of Credit issued by any it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer as provided in Section 3.4(a) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a final judgment of a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any a Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.27.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Each Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower it intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon Noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable relevant Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Borrower Company hereby agrees to reimburse (or cause any Subsidiary for whose account a Letter of Credit was issued to reimburse) each Letter of Credit Issuer, by making payment directly to the Administrative Agent in Dollars such Letter of Credit Issuer in immediately available funds at the payment office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))such Letter of Credit Issuer, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit (each such amount so paid or disbursed until reimbursed, an “Unpaid Drawing”"UNPAID DRAWING") immediately after, and in any event on the date ofon which, such paymentLetter of Credit Issuer notifies the Company (or any such Subsidiary for whose account such Letter of Credit was issued) of such payment or disbursement (which notice to the Company (or such Subsidiary) shall be delivered reasonably promptly after any such payment or disbursement), such payment to be made in Dollars (and in the amount which is the Dollar equivalent of any such payment or disbursement made or denominated in an Alternative Currency), with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York timelocal time at the payment office of the Letter of Credit Issuer) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be the rate then applicable to Revolving Loans which are Prime Rate Loans (plus an additional 2% above per annum if not reimbursed by the Applicable Margin for Revolving Credit Loans plus third Business Day after the ABR as in effect from time date of such payment or disbursement), any such interest also to timebe payable on demand.
(b) The Borrower’s Company's obligation under this section 3.3 to reimburse any payment under any Letter of Credit issued by any reimburse, or cause a Subsidiary to reimburse, each Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any set-off, counterclaim, defense or other right which the Company (or any Subsidiary) may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any person for whom any such transferee may be acting), the Administrative Agent, any Letter of Credit Issuer, any Lender, or other person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any term unrelated transactions (including any underlying transaction between the Company (or provision thereinany Subsidiary) and the beneficiary named in any such Letter of Credit); PROVIDED, HOWEVER that the Company shall not be obligated to reimburse, or cause a Subsidiary to reimburse, a Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer;
(iiiii) any draft draft, certificate or other document presented under a the Letter of Credit proving to be forged, fraudulent fraudulent, invalid or invalid insufficient in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or ;
(iv) any other event non-application or circumstance whatsoever, whether or not similar to any misapplication by the beneficiary of the foregoing, that might, but proceeds of such drawing;
(v) the surrender or impairment of any security for the provisions of this Section 3.4, constitute a legal performance or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective observance of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery terms of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that Documents: or
(vi) the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent occurrence of any direct damages (as opposed to special, indirect, consequential Default or punitive damages, claims in respect Event of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of CreditDefault.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each the Letter of Credit Issuer, by making payment in Dollars to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), for any payment or disbursement made by such the Letter of Credit Issuer under any Letter of Credit (the Dollar Equivalent of each such amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such the Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that shall at all times be 2% above the Applicable ABR Margin for Revolving Credit Loans plus the ABR as in effect from time to time.
(b) The Borrower’s obligation to reimburse any payment under any Letter of Credit issued by any Letter of Credit Issuer as , provided that, notwithstanding anything contained in Section 3.4(a) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of to the contrary, (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by unless the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither Borrower shall have notified the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse Agent and the Letter of Credit Issuer from liability prior to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter the date of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such the Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Loans, the Borrower be shall be deemed to have given a Notice of Borrowing requesting that the Lenders with Commitments make Revolving Credit Loans (which shall be ABR Loans, ) on the date on which such drawing is honored in an amount equal to the amount of such drawing and (ii) the Administrative Agent shall promptly notify each Lender relevant L/C Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and and, subject to the conditions set forth in Section 2.1(a), each Lender L/C Participant shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.make
Appears in 1 contract
Samples: Credit Agreement (Sealy Corp)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower Borrowers hereby agrees agree to reimburse (or cause any Letter of Credit Obligor for whose account a Letter of Credit was issued to reimburse) each Letter of Credit Issuer, by making payment directly to the Administrative Agent in Dollars such Letter of Credit Issuer in immediately available funds at the payment office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))such Letter of Credit Issuer, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit (each such amount so paid or disbursed until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on the date ofon which, such paymentLetter of Credit Issuer notifies Borrowers of such payment or disbursement (which notice to Borrowers shall be delivered reasonably promptly after any such payment or disbursement), such payment to be made in U.S. Dollars, with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York timelocal time at the payment office of the Letter of Credit Issuer) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that shall at all times equal to the Prime Rate plus five percent (5%) (plus an additional 3% per annum if not reimbursed by the Business Day after the date of such payment or disbursement), any such interest also to be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to timepayable on demand.
(b) The Borrower’s Borrowers' obligation under this Section 11.3 to reimburse any payment under any Letter of Credit issued by any each Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack setoff, counterclaim or defense to payment which a Borrower may have or have had against such Letter of validity Credit Issuer, Agent, or enforceability any Lender, including, without limitation, any defense based upon the failure of any drawing under a Letter of Credit to conform to the terms of the Letter of Credit or this Agreementany non-application or misapplication by the beneficiary of the proceeds of such drawing or upon any draft, or any term or provision therein, (ii) any draft certificate or other document presented under a the Letter of Credit proving to be forged, fraudulent fraudulent, invalid or invalid insufficient in any respect or any statement therein being untrue or inaccurate in any respect; provided, (iii) however, that Borrowers shall not be obligated to reimburse a Letter of Credit Issuer for any wrongful payment made by the applicable such Letter of Credit Issuer under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with the terms of such Letter of Credit, omissions constituting willful misconduct or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Samples: Credit Agreement (Team America Inc)
Agreement to Repay Letter of Credit Drawings. (a) The Each Borrower hereby agrees to reimburse each Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit issued by it at the request of such Borrower (each such amount so paid or disbursed until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on no later than one Business Day following the date of, of such paymentpayment or disbursement, with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be 2% above the Applicable Base Rate Margin for Revolving Credit Loans plus in excess of the ABR Base Rate as in effect from time to time.
time (b) The Borrower’s obligation plus an additional 2% per annum if not reimbursed by the third Business Day after the date of such payment or disbursement), such interest also to reimburse be payable on demand. Each Letter of Credit Issuer shall provide the applicable Borrower prompt notice of any payment or disbursement made by it under any Letter of Credit issued by it, although the failure of, or delay in, giving any such notice shall not release or diminish the obligations of the applicable Borrower under this Section 2.03(a) or under any other Section of this Agreement.
(b) Each Borrower's obligation under this Section 2.03 to reimburse the respective Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack setoff, counterclaim or defense to payment which the applicable Borrower or any of validity its Subsidiaries may have or enforceability of any have had against such Letter of Credit or this AgreementIssuer, the Administrative Agent or any term or provision thereinLender, (ii) including, without limitation, any draft or other document presented defense based upon the failure of any drawing under a Letter of Credit proving issued by it to be forged, fraudulent or invalid in any respect conform to the terms of the Letter of Credit or any statement therein being untrue nonapplication or inaccurate in any respect, (iii) payment misapplication by the beneficiary of the proceeds of such drawing; provided, however, that the applicable Borrower shall not be obligated to reimburse such Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit against presentation issued by it as a result of a draft acts or other document omissions that does not comply with the terms of such Letter of Credithave been found to constitute willful misconduct or gross negligence, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter on the part of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each Letter of Credit Issuerthe respective Issuing Bank, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of Payment Office (or by making the Administrative Agent from time payment directly to time notified such Issuing Bank at such location as may otherwise have been agreed upon by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)and such Issuing Bank), for any payment or disbursement made by such Letter of Credit Issuer Issuing Bank under any Letter of Credit (each such amount so paid or disbursed by such Issuing Bank, until reimbursed, an “Unpaid Drawing”) "UNPAID DRAWING"), immediately after, and in any event on the date of, such paymentpayment or disbursement, with interest on the amount so paid or disbursed by such Letter of Credit IssuerIssuing Bank, to the extent not reimbursed prior to 5:00 p.m. 12:00 Noon (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer Issuing Bank is reimbursed therefor, by the Borrower therefor at a rate per annum that which 19 CREDIT AGREEMENT shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR as Base Rate in effect from time to timetime plus 4.25%, in each case with such interest to be payable on demand.
(b) The Borrower’s obligation obligations of the Borrower under this Section 2.05 to reimburse any payment under any Letter of Credit issued by any Letter of Credit Issuer as provided the respective Issuing Bank with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever (including without limitation the circumstances described in Section 2.04(e)) and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against any Bank (i) including in its capacity as Issuing Bank or as Participant), including, without limitation, any lack of validity or enforceability defense based upon the failure of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented drawing under a Letter of Credit proving (each a "DRAWING") to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by conform to the applicable terms of the Letter of Credit Issuer or any nonapplication or misapplication by the beneficiary of the proceeds of such Drawing; provided, however, that the Borrower shall not be obligated to reimburse any Issuing Bank for any wrongful payment made by such Issuing Bank under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with the terms of such Letter of Credit, omissions constituting willful misconduct or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of CreditIssuing Bank.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each the Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), for any payment or disbursement made by such the Letter of Credit Issuer under any such Letter of Credit (each such amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such the Letter of Credit Issuer is reimbursed therefor, at a rate per annum that shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to time.
(b) The Borrower’s obligation obligations under this Section 3.4 to reimburse any payment the Letter of Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower or any other Person may have or have had against the Letter of Credit Issuer, the Administrative Agent or any Lender (including in its capacity as an L/C Participant), including any defense based upon the failure of any drawing under a Letter of Credit (each a “Drawing”) to conform to the terms of the Letter of Credit, any nonapplication or misapplication by the beneficiary of the proceeds of such Drawing or any of the circumstances described in Sections 3.3(e)(i) to 3.3(e)(v), inclusive; provided that the Borrower shall not be obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under the Letter of Credit issued by any it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer as provided in Section 3.4(a) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a final judgment of a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any the Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.27.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such the Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such the Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower it intends to reimburse such the Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) Upon the receipt by the Issuing Bank of any demand for payment from a beneficiary under a Letter of Credit (a "Drawing"), the Issuing Bank promptly will provide the Agent, the Lenders and the Company with telecopy notice of such demand. The Borrower Company hereby agrees to reimburse each Letter of Credit Issuer, the Issuing Bank by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement (a "Drawing") made by such Letter of Credit Issuer the Issuing Bank under any Letter of Credit (each such amount so paid until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such Letter of Credit Issuerthe Issuing Bank, to the extent not reimbursed prior to 5:00 2:00 p.m. (New York City time) on the date of such payment or disbursementpayment, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer reimbursement is reimbursed thereformade as provided above, at a rate per annum that shall at all times be 2% above equal to the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to timeDefault Rate, payable on demand.
(b) The Borrower’s obligation Company's obligations under this Section 3.04 to reimburse any payment under any Letter of Credit issued the Issuing Bank with respect to Unpaid Drawings (including, in each case, interest thereon) shall, to the extent permitted by any Letter of Credit Issuer as provided in Section 3.4(a) shall law, be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of any setoff, counterclaim or defense to payment which the Company may have or have had against any Lender (including the Issuing Bank or any Lender as a participant therein) or any beneficiary of a Letter of Credit, including (i) any lack of validity or enforceability of any this Agreement, such Letter of Credit or this Agreement, or any term or provision therein, other Loan Document; (ii) any draft adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (iii) any breach of this Agreement or any other document presented Loan Document by any Loan Party, the Agent or any Lender (other than the Issuing Bank); (iv) the occurrence of any Default or Event of Default; or (v) any non-application or misapplication by the beneficiary of the proceeds of such Drawing.
(c) The Company also agrees with the Issuing Bank and the Lenders that the Issuing Bank shall not be responsible for, and the Company's reimbursement obligations under a Letter Section 3.04(a) shall not be affected by, among other things, (i) the validity or genuineness of Credit proving documents or of any endorsements thereon, even though such documents shall in fact prove to be forgedinvalid, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Creditforged, or (ivii) any dispute between or among the Company, any other event or circumstance whatsoever, whether or not similar to any of Loan Party and the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer beneficiary of any Letter of Credit or any payment other party to which such Letter of Credit may be transferred or failure to make (iii) any payment thereunder (irrespective of any claims whatsoever of the circumstances referred to in the preceding sentence), Company or any other Loan Party against any beneficiary of such Letter of Credit or any such transferee.
(d) The Issuing Bank shall not be liable for any error, omission, interruption, loss interruption or delay in transmission transmission, dispatch or delivery of any draftmessage or advice, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree thathowever transmitted, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, connection with respect to documents presented which appear on their face to be in substantial compliance with the terms of a any Letter of Credit, the applicable Letter of Credit Issuer mayexcept for errors or omissions caused by such Issuing Bank's gross negligence or willful misconduct. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT SUCH ISSUING BANK, in its sole discretionITS OFFICERS, either accept and make payment upon such documents without responsibility for further investigationDIRECTORS, regardless of any notice or information to the contraryEMPLOYEES AND AGENTS (OTHER THAN WITH RESPECT TO ANY CLAIMS BY THE ISSUING BANK AGAINST ANY SUCH OFFICER, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit LoanDIRECTOR, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.EMPLOYEE OR
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each respective Letter of Credit Issuer, by making payment to the Administrative Agent for the account of such Letter of Credit Issuer in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit issued by it (each such amount so paid or disbursed until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on the date of, notice from such payment, Letter of Credit Issuer of such payment or disbursement with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR Base Rate as in effect from time to timetime (plus an additional 2% per annum if not reimbursed by the third Business Day after the date of notice of such payment or disbursement), such interest to be payable on demand.
(b) The Borrower’s 's obligation under this Section 2.04 to reimburse any payment under any Letter of Credit issued by any each respective Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack setoff, counterclaim or defense to payment which the Borrower, any of validity its Subsidiaries or enforceability of any Permitted Joint Venture may have or have had against such Letter of Credit or this AgreementIssuer, the Administrative Agent, any Co-Agent, any Syndication Agent, the Documentation Agent, or any term or provision thereinBank, (ii) including, without limitation, any draft or other document presented defense based upon the failure of any drawing under a Letter of Credit proving to be forged, fraudulent or invalid in any respect conform to the terms of the Letter of Credit or any statement therein being untrue non-application or inaccurate in any respect, (iii) payment misapplication by the applicable beneficiary of the proceeds of such drawing or any amendment or waiver or any consent to or departure from a Letter of Credit or any other circumstance whatsoever in making or failing to make payment under a Letter of Credit; provided, however, that the Borrower shall not be obligated to reimburse a Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with the terms of such Letter of Credit, omissions constituting willful misconduct or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Samples: Credit Agreement (Ametek Inc/)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each the Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars U.S. dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement made by such the Letter of Credit Issuer under any Letter of Credit issued by it (each such amount so paid or disbursed until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on the date of, notice from the Letter of Credit Issuer of such payment, payment or disbursement with interest on the amount so paid or disbursed by such the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such the Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be 2% above the Applicable Base Rate Margin for Revolving Credit Loans plus the ABR Base Rate as in effect from time to timetime (plus an additional 2% per annum if not reimbursed by the third Business Day after the date of notice of such payment or disbursement), such interest also to be payable on demand.
(b) The Borrower’s 's obligation under this Section 2.4 to reimburse any payment under any Letter of Credit issued by any the Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity setoff, counterclaim or enforceability of any defense to payment which the Borrower may have or have had against the Letter of Credit or this AgreementIssuer, the Agent or any term or provision thereinBank, (ii) including, without limitation, any draft or other document presented defense based upon the failure of any drawing under a Letter of Credit proving to be forged, fraudulent or invalid in any respect conform to the terms of the Letter of Credit or any statement therein being untrue non-application or inaccurate in any respect, (iii) payment misapplication by the applicable beneficiary of the proceeds of such drawing; provided, however, that the Borrower shall not be obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with omissions constituting willful misconduct or gross negligence on the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control part of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) Upon the receipt by the Bank of any Drawing from a beneficiary under a Letter of Credit, the Bank promptly will provide the Borrower with telecopy notice thereof. The Borrower hereby agrees to reimburse each Letter of Credit Issuer, the Bank by making payment to the Administrative Agent in Dollars Bank in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))office, for any payment or disbursement made by such Letter of Credit Issuer the Bank under any Letter of Credit issued by it (each such amount so paid until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such Letter of Credit Issuerthe Bank, to the extent not reimbursed prior to 5:00 2:00 p.m. (New York Houston time) on the date of such payment or disbursementpayment, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer reimbursement is reimbursed thereformade as provided above, at a rate per annum equal to the Highest Lawful Rate, such interest to be payable on demand. Unless otherwise paid by the Borrower, such Unpaid Drawing may (and, if the Bank so desires, shall automatically, provided that the Bank give notice thereof to Borrower promptly thereafter), subject to satisfaction of the conditions precedent set forth in Sections 2.3 and 7, be paid with the proceeds of Loans which shall bear interest at all times be 2% above an annual rate equal to the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to timeBase Rate.
(b) The Borrower’s obligation 's obligations under this Section 2.5 to reimburse any payment under any Letter of Credit issued by any Letter of Credit Issuer as provided the Bank with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever (except as provided below with respect to the gross negligence or willful misconduct of the Bank) and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against the Bank, including any defense based upon the failure of any drawing under a Letter of Credit (each a "Drawing") to conform to the terms of the Letter of Credit (other than a defense based upon the gross negligence or willful misconduct of the Bank in determining whether such Drawing conforms to the terms of the Letter of Credit) or any non-application or misapplication by the beneficiary of the proceeds of such Drawing, including any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other International Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Bank, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any term unrelated transactions (including any underlying transaction between the Borrower or provision therein, any other Person and the beneficiary named in any such Letter of Credit);
(iiiii) any draft draft, certificate or any other document presented under a the Letter of Credit proving to be forged, fraudulent fraudulent, invalid or invalid insufficient in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or ;
(iv) the surrender or impairment of any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but security for the provisions of this Section 3.4, constitute a legal performance or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective observance of any of the circumstances referred to in terms of any of the preceding sentence)International Loan Documents;
(v) the occurrence of any Default or Event of Default; or
(vi) any other circumstance which might otherwise constitute a defense available to, or any errora discharge of, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit IssuerBorrower; provided that none of the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability is attributable to the gross negligence or willful misconduct of the Bank.
(c) The Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply also agrees with the terms thereof. The parties hereto expressly agree Bank that, in the absence of gross negligence or wilful willful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereofBank, the parties agree thatBank shall not be responsible for, with respect to and the Borrower's reimbursement obligations under Section 2.6(a) shall not be affected by, among other things, the validity or genuineness of documents presented which appear on their face or of any endorsements thereon, even though such documents shall in fact prove to be in substantial compliance with invalid, fraudulent or forged or any dispute between or among the terms Borrower or any other Person and the beneficiary of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under or any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject other party to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a may be transferred or any claims whatsoever of the Borrower or any other Person against any beneficiary of such Letter of Credit or any such transferee.
(d) The Bank shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, of (i) such except for errors or omissions caused by the Bank's gross negligence or willful misconduct. The Borrower agrees that any action taken or omitted by the Bank under or in connection with any Letter of Credit Issuer’s intention or the related drafts or documents, if done in the absence of gross negligence or willful misconduct and in accordance with the standards of care specified in the Uniform Customs and Practice for Documentary Credits (1994 Revision), International Chamber of Commerce, Publication No. 500 (and any subsequent revisions thereof approved by a Congress of the International Chamber of Commerce and adhered to honor by such drawing and (iiBank) and, to the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loansextent not inconsistent therewith, the Administrative Agent Uniform Commercial Code of the State of Texas, shall promptly notify each Lender not result in any liability of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans Bank to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))or any other Person. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid DrawingIT IS THE INTENT OF THE PARTIES HERETO THAT THE BANK SHALL NOT HAVE ANY LIABILITY UNDER THIS SECTION 2.5 FOR THE ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE OF THE BANK.
Appears in 1 contract
Samples: International Revolving Loan Agreement (Natco Group Inc)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), Issuing Bank for any payment or disbursement made by such Letter of Credit Issuer the Issuing Bank under any Letter of Credit (each such amount so paid or disbursed until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on within one Business Day after the date of, of such paymentpayment or disbursement, with interest on the amount so paid or disbursed by such Letter of Credit Issuerthe Issuing Bank, if and to the extent not reimbursed prior to 5:00 p.m. (New York 2:00 P.M., Chicago time) , on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is the Issuing Bank was reimbursed therefor, therefor at a rate per annum which shall be the rate of interest that shall at all times would be 2% above the Applicable Margin for Revolving Credit applicable to Base Rate Loans plus the ABR as in effect from time to timeduring such period.
(b) The Borrower’s obligation 's obligations under this Section 3.04 to reimburse any payment under any Letter the Issuing Bank with respect to Unpaid Drawings in respect of Letters of Credit issued by any Letter of Credit Issuer as provided (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of any set off, counterclaim or defense to payment which the Borrower may have or have had against any Bank (iincluding the Issuing Bank in its capacity as issuer of the Letter of Credit or as a Bank), including, without limitation, any defense based upon the failure of any drawing under a Letter of Credit (each a "Drawing") to conform to the terms of the Letter of Credit or any lack non-application or misapplication by the beneficiary of validity the proceeds of such Drawing. The Borrower assumes all risks as a result of the acts or enforceability omissions of the user of any Letter of Credit and all risks of the misuse of any Letter of Credit. The Issuing Bank in its capacity as issuer of any Letter of Credit shall not be liable:
(i) for the form, validity, sufficiency, accuracy, genuineness or this Agreementlegal effect of any document reasonably believed to be genuine by the Person examining such document in connection with any Letter of Credit, even if it should prove to be in any respect invalid, insufficient, inaccurate, fraudulent or any term or provision therein, forged,
(ii) for the validity or insufficiency of any draft instrument transferring or other document presented under a assigning or purporting to assign any Letter of Credit proving to be forged, fraudulent or invalid in any respect the rights and benefits thereunder or any statement therein being untrue or inaccurate in any respect, the proceeds thereof,
(iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft for clerical, administrative or other document that does not comply with the terms ministerial errors, such as failure of such any draft to bear any reference or adequate reference to any applicable Letter of Credit, or failure of any Person to note the amount of any draft on any applicable Letter of Credit or to surrender or take up any applicable Letter of Credit or to send forward any such document apart from drafts as required by the terms of any Letter of Credit, each of which provisions, if contained in any Letter of Credit, may be waived by the Issuing Bank,
(iv) for errors, omissions, interruptions or delays in transmissions or delivery of any other event message, by mail, telegraph, telex or circumstance whatsoeverotherwise,
(v) for any error, whether neglect, default, suspension or not similar to insolvency of any correspondent,
(vi) for errors in translation or for errors in interpretation of technical terms, (vii) for any loss or delay in the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal transmission or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer otherwise of any Letter of Credit or any payment document or failure to make any payment thereunder (irrespective of any of the circumstances referred to draft in the preceding sentence), connection therewith or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.,
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each Letter of Credit the applicable L/C Issuer, by making payment in Dollars to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))funds, for any payment or disbursement made by such Letter of Credit L/C Issuer under any Letter of Credit (each such amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the first Business Day following the date ofthat such L/C Issuer provides written notice to the Borrower of such payment or disbursement (such required date for reimbursement, such paymentthe “Reimbursement Date”), with interest on the amount so paid or disbursed by such Letter of Credit L/C Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on from and including the date of such payment or disbursement, from and including the date paid or disbursed disbursement to but excluding the date such Letter of Credit Issuer is reimbursed thereforReimbursement Date, at a rate the per annum that shall at all times be 2% above rate for each day equal to the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to timePrime Rate.
(b) The Borrower’s obligation obligations of the Borrower under this Section 3.3 to reimburse the L/C Issuers with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any set-off, counterclaim or defense to payment that the Borrower or any other Person may have or have had against any L/C Issuer or the Administrative Agent, including any defense based upon the failure of any drawing under a Letter of Credit (each a “Drawing”) to conform to the terms of the Letter of Credit or any non-application or misapplication by the beneficiary of the proceeds of such Drawing; provided that the Borrower shall not be obligated to reimburse any L/C Issuer for any wrongful payment made by such L/C Issuer under any the Letter of Credit issued by it as a result of acts or omissions constituting gross negligence, bad faith, willful misconduct or a material breach by such L/C Issuer (or any Letter of Credit Issuer as provided in Section 3.4(aits Related Parties) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree thatDocument, in the absence each case, as determined in a final non- appealable judgement of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit ; further provided that if the Borrower fails to reimburse any L/C Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment Unpaid Drawings as required by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to this Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans3.3(b), the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated authorized hereunder to make ABR Loans instruct the Collateral Agent to release Cash Collateral to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of to satisfy the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawingreimbursement obligations.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Talen Energy Corp)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse each Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), Issuing Bank for any payment or disbursement made by such Letter of Credit Issuer the Issuing Bank under any Letter of Credit (each such amount so paid or disbursed until reimbursed, an “Unpaid Drawing”"UNPAID DRAWING") immediately after, and in any event on within one Business Day after the date of, of such paymentpayment or disbursement, with interest on the amount so paid or disbursed by such Letter of Credit Issuerthe Issuing Bank, if and to the extent not reimbursed prior to 5:00 p.m. (New York 2:00 P.M., Chicago time) , on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is the Issuing Bank was reimbursed therefor, therefor at a rate per annum which shall be the rate of interest that shall at all times would be 2% above the Applicable Margin for Revolving Credit applicable to Base Rate Loans plus the ABR as in effect from time to timeduring such period.
(b) The Borrower’s obligation 's obligations under this Section 3.04 to reimburse any payment under any Letter the Issuing Bank with respect to Unpaid Drawings in respect of Letters of Credit issued by any Letter of Credit Issuer as provided (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of any set off, counterclaim or defense to payment which the Borrower may have or have had against any Bank (iincluding the Issuing Bank in its capacity as issuer of the Letter of Credit or as a Bank), including, without limitation, any defense based upon the failure of any drawing under a Letter of Credit (each a "DRAWING") to conform to the terms of the Letter of Credit or any lack non-application or misapplication by the beneficiary of validity the proceeds of such Drawing. The Borrower assumes all risks as a result of the acts or enforceability omissions of the user of any Letter of Credit and all risks of the misuse of any Letter of Credit. The Issuing Bank in its capacity as issuer of any Letter of Credit shall not be liable:
(i) for the form, validity, sufficiency, accuracy, genuineness or this Agreementlegal effect of any document reasonably believed to be genuine by the Person examining such document in connection with any Letter of Credit, even if it should prove to be in any respect invalid, insufficient, inaccurate, fraudulent or any term or provision therein, forged,
(ii) for the validity or insufficiency of any draft instrument transferring or other document presented under a assigning or purporting to assign any Letter of Credit proving to be forged, fraudulent or invalid in any respect the rights and benefits thereunder or any statement therein being untrue or inaccurate in any respect, the proceeds thereof,
(iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft for clerical, administrative or other document that does not comply with the terms ministerial errors, such as failure of such any draft to bear any reference or adequate reference to any applicable Letter of Credit, or failure of any Person to note the amount of any draft on any applicable Letter of Credit or to surrender or take up any applicable Letter of Credit or to send forward any such document apart from drafts as required by the terms of any Letter of Credit, each of which provisions, if contained in any Letter of Credit, may be waived by the Issuing Bank,
(iv) for errors, omissions, interruptions or delays in transmissions or delivery of any other event message, by mail, telegraph, telex or circumstance whatsoeverotherwise,
(v) for any error, whether neglect, default, suspension or not similar to insolvency of any correspondent,
(vi) for errors in translation or for errors in interpretation of technical terms,
(vii) for any loss or delay in the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal transmission or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer otherwise of any Letter of Credit or any payment document or failure to make any payment thereunder draft in connection therewith or the proceeds thereof,
(irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or viii) for any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed Issuing Bank, or
(ix) for any other act or omission to excuse the Letter of Credit Issuer from liability to the Borrower to the extent act or delay of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment kind by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by Bank (including the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit LoansIssuing Bank), the Administrative Agent shall promptly notify each Lender or any other Person which might, but for the provisions of such drawing and this subsection (vii), constitute a legal or equitable discharge of or defense to the amount Borrower's obligations hereunder. Nothing in this subsection (b) is intended to limit the right of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated the Borrower to make ABR Loans a claim against the Issuing Bank for 37 damages as contemplated by the proviso to the Borrower in the amount first sentence of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing3.05.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Each Borrower hereby agrees to reimburse each Letter of Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the such Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit issued for the account of such Borrower (each such amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is reimbursed therefor, at a rate per annum that shall at all times be 2% above the Applicable Margin for Revolving Credit Loans plus the ABR Base Rate as in effect from time to time.
(b) The Each Borrower’s obligation to reimburse any payment under any Letter of Credit issued by any Letter of Credit Issuer for the account of such Borrower as provided in Section 3.4(a) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Letter of Credit Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the any Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the applicable Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the such Borrower to the extent permitted by applicable law) suffered by the such Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful willful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the applicable Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the applicable Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the applicable Borrower by 10:30 a.m. (New York time) on such Business Day that the such Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Base Rate Loans to the such Borrower in the amount of such LenderXxxxxx’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the applicable Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The Each Borrower hereby agrees to reimburse (or cause any Letter of Credit Obligor for whose account a Letter of Credit was issued to reimburse) each Letter of Credit Issuer, by making payment directly to the Administrative Agent in Dollars such Letter of Credit Issuer in immediately available funds at the payment office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))such Letter of Credit Issuer, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit (each such amount so paid or disbursed until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on the date ofon which, such paymentLetter of Credit Issuer notifies such Borrower (or any such other Letter of Credit Obligor for whose account such Letter of Credit was issued) of such payment or disbursement (which notice to such Borrower (or such other Letter of Credit Obligor) shall be delivered reasonably promptly after any such payment or disbursement), such payment to be made in Dollars (and in the amount which is the Dollar equivalent of any such payment or disbursement made or denominated in an Alternative Currency), with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York timelocal time at the payment office of the Letter of Credit Issuer) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be the rate then applicable to Revolving Loans which are Prime Rate Loans (plus an additional 2% above per annum if not reimbursed by the Applicable Margin for Revolving Credit Loans plus third Business Day after the ABR as in effect from time date of such payment or disbursement), any such interest also to timebe payable on demand.
(b) The Each Borrower’s 's obligation under this section 3.3 to reimburse any payment under any reimburse, or cause another Letter of Credit issued by any Obligor to reimburse, each Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity setoff, counterclaim or enforceability of defense to payment which any Borrower or any other Letter of Credit Obligor may have or this Agreementhave had against such Letter of Credit Issuer, the Administrative Agent, any other Letter of Credit Issuer or any term or provision thereinLender, (ii) including, without limitation, any draft or other document presented defense based upon the failure of any drawing under a Letter of Credit proving to be forged, fraudulent or invalid in any respect conform to the terms of the Letter of Credit or any statement therein being untrue non-application or inaccurate in any respect, (iii) payment misapplication by the applicable beneficiary of the proceeds of such drawing, provided, however that no Borrower shall be obligated to reimburse, or cause another Letter of Credit Obligor to reimburse, a Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with the terms of such Letter of Credit, omissions constituting willful misconduct or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Samples: Credit Agreement (Stoneridge Inc)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower -------------------------------------------- Company hereby agrees to reimburse each Letter of Credit Issuerthe respective Issuing Bank, by making payment directly to such Issuing Bank for its own account in lawful money of the Administrative Agent in Dollars United States of America and in immediately available funds at the applicable payment office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))such Issuing Bank, for any payment or disbursement made by such Letter of Credit Issuer Issuing Bank under any Letter of Credit issued by it (each such amount so paid or disbursed until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on the date of, such payment, payment or disbursement with interest on the amount so paid or disbursed by such Letter of Credit IssuerIssuing Bank, to the extent not reimbursed prior to 5:00 p.m. 12:00 Noon (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is Issuing Bank was reimbursed therefor, therefor at a rate per annum that which shall at all times be 21% above in excess of the Applicable Margin for Revolving Credit Loans plus the ABR Base Rate as in effect from time to time, with such interest also to be payable on demand.
(b) The Borrower’s obligation Company's obligations under this Section 2.05 to reimburse any payment under any Letter of Credit issued by any Letter of Credit Issuer each Issuing Bank with respect to Unpaid Drawings (including, in each case, interest thereon as provided in Section 3.4(a2.05(a)) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of any set-off, counterclaim or defense to payment which the Company may have or have had against any Bank (i) including in its capacity as an Issuing Bank or Participant), including, without limitation, any lack of validity or enforceability defense based upon the failure of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented drawing under a Letter of Credit proving (each a "Drawing") to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by conform to the applicable terms of the Letter of Credit Issuer or any non-application or misapplication by the beneficiary of the proceeds of such Drawing or any circumstance described in Section 2.04(e); provided, however, that the Company shall not be obligated to reimburse any Issuing Bank for any wrongful payment made by such Issuing Bank under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with the terms of such Letter of Credit, omissions constituting willful misconduct or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of CreditIssuing Bank.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Samples: Revolving Credit Agreement (Sunoco Logistics Partners Lp)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse (or cause any Subsidiary for whose account a Letter of Credit was issued to reimburse) each Letter of Credit Issuer, by making payment directly to the Administrative Agent in Dollars such Letter of Credit Issuer in immediately available funds at the payment office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))such Letter of Credit Issuer, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit (each such amount so paid or disbursed until reimbursed, an “Unpaid Drawing”"UNPAID DRAWING") immediately after, and in any event on the date ofon which, such paymentLetter of Credit Issuer notifies the Borrower (or any such Subsidiary for whose account such Letter of Credit was issued) of such payment or disbursement (which notice to the Borrower (or such Subsidiary) shall be delivered reasonably promptly after any such payment or disbursement), such payment to be made in Dollars (and in the amount which is the Dollar equivalent of any such payment or disbursement made or denominated in an Alternative Currency), with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York timelocal time at the payment office of the Letter of Credit Issuer) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be 2the rate then applicable to General Revolving Loans which are Prime Rate Loans (plus an additional 3% above per annum if not reimbursed by the Applicable Margin for Revolving Credit Loans plus third Business Day after the ABR as in effect from time date of such payment or disbursement), any such interest also to timebe payable on demand.
(b) The Borrower’s 's obligation under this section 3.3 to reimburse any payment under any Letter of Credit issued by any reimburse, or cause a Subsidiary to reimburse, each Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity setoff, counterclaim or enforceability of any defense to payment which the Borrower may have or have had against such Letter of Credit or this AgreementIssuer, the Administrative Agent, any other Letter of Credit Issuer or any term or provision thereinLender, (ii) including, without limitation, any draft or other document presented defense based upon the failure of any drawing under a Letter of Credit proving to be forged, fraudulent or invalid in any respect conform to the terms of the Letter of Credit or any statement therein being untrue non-application or inaccurate in any respect, (iii) payment misapplication by the applicable beneficiary of the proceeds of such drawing, PROVIDED, HOWEVER that the Borrower shall not be obligated to reimburse, or cause a Subsidiary to reimburse, a Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit against presentation as a result of a draft acts or other document that does not comply with the terms of such Letter of Credit, omissions constituting willful misconduct or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Samples: Credit Agreement (Essef Corp)
Agreement to Repay Letter of Credit Drawings. (a) The Borrower Borrowers hereby agrees agree to reimburse each Letter of 25 -19- Credit Issuer, by making payment to the Administrative Agent in Dollars in immediately available funds at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii))Payment Office, for any payment or disbursement made by such Letter of Credit Issuer under any Letter of Credit issued by it (each such amount so paid or disbursed until reimbursed, an “"Unpaid Drawing”") immediately after, and in any event on no later than one Business Day following the date of, of such paymentpayment or disbursement, with interest on the amount so paid or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. 1:00 P.M. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding not including the date such Letter of Credit Issuer is reimbursed therefor, therefor at a rate per annum that which shall at all times be 2% above the Applicable Base Rate Margin for Revolving Credit Loans plus in excess of the ABR Base Rate as in effect from time to time.
time (b) The Borrower’s obligation plus an additional 2% per annum if not reimbursed by the third Business Day after the date of such payment or disbursement), such interest also to reimburse be payable on demand. Each Letter of Credit Issuer shall provide the Borrowers prompt notice of any payment or disbursement made by it under any Letter of Credit issued by it, although the failure of, or delay in, giving any such notice shall not release or diminish the obligations of the Borrowers under this Section 2.03(a) or under any other Section of this Agreement.
(b) The Borrowers' obligation under this Section 2.03 to reimburse the respective Letter of Credit Issuer as provided with respect to Unpaid Drawings (including, in Section 3.4(aeach case, interest thereon) shall be absolute, absolute and unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack setoff, counterclaim or defense to payment which the Borrowers or any of validity its Subsidiaries may have or enforceability of any have had against such Letter of Credit or this AgreementIssuer, the Agent or any term or provision thereinLender, (ii) including, without limitation, any draft or other document presented defense based upon the failure of any drawing under a Letter of Credit proving issued by it to be forged, fraudulent or invalid in any respect conform to the terms of the Letter of Credit or any statement therein being untrue nonapplication or inaccurate in any respect, (iii) payment misapplication by the applicable beneficiary of the proceeds of such drawing; provided, however, that the Borrowers shall not be obligated to reimburse such Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit against presentation issued by it as a result of a draft acts or other document omissions that does not comply with the terms of such Letter of Credit, have been found to constitute willful misconduct or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Letter of Credit Issuer, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Letter of Credit Issuer; provided that the foregoing shall not be construed to excuse the Letter of Credit Issuer from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Letter of Credit Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Letter of Credit Issuer (as finally determined by a court of competent jurisdiction), such Letter of Credit Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Letter of Credit Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(c) Each payment by any Letter of Credit Issuer under any Letter of Credit shall constitute a request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the amount of the Unpaid Drawing in respect of such Letter of Credit. The applicable Letter of Credit Issuer shall notify the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on which such Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) such Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing. Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Administrative Agent shall promptly notify each Lender of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent at the office of the Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for the purpose of reimbursing the applicable Letter of Credit Issuer for the related Unpaid Drawing.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Di Industries Inc)
