Agreement to Repay Letter of Credit Drawings. (a) The US Borrower and the Canadian Borrower hereby agree to reimburse the relevant Letter of Credit Issuer, by making payment in the currency in which the relevant Letter of Credit was denominated to the Administrative Agent (in the case of reimbursement made by the US Borrower) or the Canadian Administrative Agent (in the case of reimbursement made by the Canadian Borrower) in immediately available funds 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 the Applicable ABR Margin plus the ABR as in effect from time to time (in the case of the US Letter of Credit Issuer) or the Applicable ABR Margin plus the Canadian Prime Rate as in effect from time to time (in the case of the Canadian Letter of Credit Issuer); provided that, notwithstanding anything contained in this Agreement to the contrary, (i) unless the US Borrower (or the Canadian Borrower) shall have notified the Administrative Agent (or the Canadian Administrative Agent) and the relevant Letter of Credit Issuer prior to 10:00 a.m. (New York time) on the Business Day next following the date of such drawing that the US Borrower or the Canadian Borrower, as the case may be, intends to reimburse the relevant Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Loans, the US Borrower or the Canadian Borrower, as the case may be, shall be deemed to have given a Notice of Borrowing requesting that, (A) with respect to US Letters of Credit, the Lenders with US Revolving Credit Commitments make US Revolving Credit Loans (which shall be ABR Loans) and (B) with respect to Canadian Letters of Credit, the Lenders with Canadian Revolving Credit Commitments make Canadian Revolving Credit Loans (which shall be Canadian Prime Rate 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 or the Canadian Administrative Agent shall promptly notify each relevant L/C Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each L/C Participant shall be irrevocably obligated to make a Revolving Credit Loan to the US Borrower or the Canadian Borrower, as applicable, in the manner deemed to have been requested in the amount of its 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 or the Canadian Administrative Agent, as applicable. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent or the Canadian Administrative Agent, as applicable, shall use the proceeds of such Revolving Credit Loans solely for purpose of reimbursing the relevant Letter of Credit Issuer for the related Unpaid Drawing. (b) The obligations of the US Borrower and the Canadian Borrower under this Section to reimburse the relevant 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 defense to payment that the US Borrower, the Canadian Borrower or any other Person may have or have had against such Letter of Credit Issuer, the Administrative Agent, the Canadian 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 or any non-application or misapplication by the beneficiary of the proceeds of such Drawing; provided that neither the US Borrower nor the Canadian Borrower shall be obligated to reimburse such 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 on the part of such Letter of Credit Issuer.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (a) The US Borrower (i) 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 Borrower hereby agree to reimburse the relevant Facility Letter of Credit Issuerissued 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 Issuing Lender, by making payment in the currency in which the relevant Letter of Credit was denominated to the Administrative Agent in the applicable Available Currency (or, in the case of reimbursement any unreimbursed payment made in a currency other than an Available Currency under the applicable Facility, the U.S. Dollar Equivalent of such payment or disbursement as determined by the US Borrower) respective Issuing Lender on the date of such payment or the Canadian Administrative Agent (in the case of reimbursement made by the Canadian Borrowerdisbursement) in immediately available funds at the 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 the U.S. Borrowers or the Canadian Borrowers, 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 therefor by such U.S. Borrower or such Canadian Borrower, as applicable, at a rate per annum that shall at all times be equal to the Applicable ABR Margin plus the ABR as in effect from time to time (in the case of the US Letter of Credit Issuer) or the Applicable ABR Margin plus the Canadian Prime 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; (or, in the case of any unreimbursed payment denominated in Canadian Dollars, the interest rate applicable to Canadian Letter of Credit Issuer); provided thatPrime Rate Loans) provided, notwithstanding anything contained in this Agreement however, -115- to the contrary, (i) unless the US Borrower (or the Canadian Borrower) shall have notified the Administrative Agent (or the Canadian Administrative Agent) and the relevant Letter of Credit Issuer extent such amounts are not reimbursed prior to 10:00 a.m. 12:00 Noon (New York City time) on the third Business Day next following the date receipt by any such U.S. Borrower or any such Canadian Borrower, as applicable, of notice of such drawing that payment or disbursement or following the US Borrower occurrence of a Default or an Event of Default under Section 11.01(g) or (h), interest shall thereafter accrue on the amounts so paid or disbursed by such Issuing Lender (until reimbursed by the U.S. Borrowers or the Canadian BorrowerBorrowers, as applicable, at the applicable rate per annum specified above plus 2%, with such interest to be payable on demand. Each Issuing Lender shall give the U.S. Borrowers or the Canadian Borrowers, as the case may be, intends to reimburse the relevant prompt written notice of each Drawing under any Letter of Credit Issuer issued by it for the amount account of such drawing with funds other than Borrowers; provided that the proceeds failure to give any such notice shall in no way affect, impair or diminish the obligations of Loans, any such Borrower hereunder.
(b) The joint and several obligations of the US Borrower U.S. Borrowers or the Canadian BorrowerBorrowers, as the case may be, shall be deemed under this Section 3.05 to have given a Notice of Borrowing requesting that, (A) reimburse each Issuing Lender with respect to US drafts, demands and other presentations for payment under Letters of CreditCredit issued by it (each, the Lenders with US Revolving Credit Commitments make US Revolving Credit Loans (which shall be ABR Loansa “Drawing”) and (B) with respect to Canadian Letters of Credit, the Lenders with Canadian Revolving Credit Commitments make Canadian Revolving Credit Loans (which shall be Canadian Prime Rate 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 or the Canadian Administrative Agent shall promptly notify each relevant L/C Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each L/C Participant shall be irrevocably obligated to make a Revolving Credit Loan to the US Borrower or the Canadian Borrower, as applicable, in the manner deemed to have been requested in the amount of its 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 or the Canadian Administrative Agent, as applicable. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent or the Canadian Administrative Agent, as applicable, shall use the proceeds of such Revolving Credit Loans solely for purpose of reimbursing the relevant Letter of Credit Issuer for the related Unpaid Drawing.
(b) The obligations of the US Borrower and the Canadian Borrower under this Section to reimburse the relevant 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-offsetoff, counterclaim or defense to payment that the US Borrowerwhich AbitibiBowaterResolute, the Canadian any Borrower or any other Person Subsidiary of AbitibiBowaterResolute may have or have had against such Letter of Credit Issuer, the Administrative Agent, the Canadian Administrative Agent or any Lender under the respective Facility (including in its capacity as an L/C Issuing Lender or as a Participant), including 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 non-application nonapplication or misapplication by the beneficiary of the proceeds of such Drawing; provided provided, however, that neither the US Borrower nor foregoing shall not be construed to excuse the Canadian Borrower shall be obligated applicable Issuing Lender from liability to reimburse such Letter the Borrowers to the extent of Credit Issuer for any wrongful payment made direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by such Letter of Credit Issuer under the Letter of Credit issued Borrowers to the extent permitted by it as a result of applicable law) suffered by the Borrowers that are caused by acts or omissions constituting willful misconduct or gross negligence on the part of such Letter Issuing Lender (as determined by a court of Credit Issuercompetent jurisdiction in a final and non-appealable decision).
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (ai) The US Borrower Each U.S. Borrower, in the case of the Letters of Credit issued for the account of a U.S. Borrower, hereby jointly and severally agrees, (ii) each Australian Borrower, in the case of the Letters of Credit issued for the account of an Australian Borrower, hereby jointly and severally agrees, (iii) each Canadian Borrower Borrower, in the case of the Letters of Credit issued for the account of a Canadian Borrower, hereby agree jointly and severally agrees, (iv) each Dutch Borrower, in the case of the Letters of Credit issued for the account of a Dutch Borrower, hereby jointly and severally agrees and (v) each U.K. Borrower, in the case of the Letters of Credit issued for the account of a U.K. Borrower, hereby jointly and severally agrees, in each case, to reimburse the relevant Letter of Credit Issuereach Issuing Lender, by making payment in the currency in which the relevant Letter of Credit was denominated to the Administrative Agent in U.S. Dollars (or, in the case of reimbursement 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 US Borrower) respective Issuing Lender on the date of such payment or the Canadian Administrative Agent (in the case of reimbursement made by the Canadian Borrowerdisbursement) in immediately available funds at the 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, such Australian Borrower, such Canadian Borrower, such Dutch Borrower or such U.K. 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, such Australian Borrower, such Canadian Borrower, such Dutch Borrower or such U.K. Borrower, as applicable, an “Unpaid Drawing”), not later than one Business Day following receipt by any such U.S. Borrower, any such Australian Borrower, any such Canadian Borrower, any such Dutch Borrower or any such U.K. 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(e) 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 therefor by such U.S. Borrower, such Australian Borrower, such Canadian Borrower, such Dutch Borrower or such U.K. Borrower, as applicable, at a rate per annum that shall at all times be equal to the Applicable ABR Margin plus the ABR as in effect from time to time (in the case of the US Letter of Credit Issuer) or the Applicable ABR Margin plus the Canadian Prime Base Rate as in effect from time to time (plus the Applicable Margin as in the case of the Canadian Letter of Credit Issuer)effect from time to time for U.S. Dollar Denominated Revolving Loans that are maintained as Base Rate Loans; provided thatprovided, notwithstanding anything contained in this Agreement however, to the contrary, (i) unless the US Borrower (or the Canadian Borrower) shall have notified the Administrative Agent (or the Canadian Administrative Agent) and the relevant Letter of Credit Issuer extent such amounts are not reimbursed prior to 10:00 a.m. 12:00 Noon (New York City time) on the third Business Day next following the date of receipt by any such drawing that the US Borrower or the U.S. Borrower, any such Australian Borrower, any such Canadian Borrower, as the case may be, intends to reimburse the relevant Letter of Credit Issuer for the amount of any such drawing with funds other than the proceeds of Loans, the US Dutch Borrower or the Canadian Borrower, as the case may be, shall be deemed to have given a Notice of Borrowing requesting that, (A) with respect to US Letters of Credit, the Lenders with US Revolving Credit Commitments make US Revolving Credit Loans (which shall be ABR Loans) and (B) with respect to Canadian Letters of Credit, the Lenders with Canadian Revolving Credit Commitments make Canadian Revolving Credit Loans (which shall be Canadian Prime Rate Loans) on the date on which any such drawing is honored in an amount equal to the amount of such drawing and (ii) the Administrative Agent or the Canadian Administrative Agent shall promptly notify each relevant L/C Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each L/C Participant shall be irrevocably obligated to make a Revolving Credit Loan to the US Borrower or the Canadian U.K. Borrower, as applicable, in the manner deemed to have been requested in the amount of its Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount notice of such Revolving Credit Loan available to payment or disbursement or following the Administrative Agent occurrence of a Default or the Canadian Administrative Agent, as applicable. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent or the Canadian Administrative Agent, as applicable, shall use the proceeds an Event of such Revolving Credit Loans solely for purpose of reimbursing the relevant Letter of Credit Issuer for the related Unpaid Drawing.
(b) The obligations of the US Borrower and the Canadian Borrower Default under this Section to reimburse the relevant Letter of Credit Issuer with respect to Unpaid Drawings (including, in each case11.01(e), interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any set-off, counterclaim thereafter accrue on the amounts so paid or defense to payment that the US Borrower, the Canadian Borrower or any other Person may have or have had against disbursed by such Letter of Credit Issuer, the Administrative Agent, the Canadian Administrative Agent or any Issuing 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 or any non-application or misapplication by the beneficiary of the proceeds of such Drawing; provided that neither the US Borrower nor the Canadian Borrower shall be obligated to reimburse such Letter of Credit Issuer for any wrongful payment made and until reimbursed 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 on the part of such Letter of Credit Issuer.U.S.
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (ai) The US Borrower and Each U.S. Borrower, in the Canadian Borrower hereby agree to reimburse the relevant case of a Letter of Credit Issuerissued for the account of a U.S. Borrower, hereby jointly and severally agrees, and (ii) each Canadian Borrower, in the case of a Letter of Credit issued for the account of a Canadian Borrower, hereby jointly and severally agrees, in each case, to reimburse each Issuing Lender, by making payment in the currency in which the relevant Letter of Credit was denominated to the Administrative Agent in U.S. Dollars (or, in the case of reimbursement 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 US Borrower) respective Issuing Lender on the date of such payment or the Canadian Administrative Agent (in the case of reimbursement made by the Canadian Borrowerdisbursement) in immediately available funds at the 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 any U.S. Borrower or any 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 U.S. Borrower or any 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 11.05 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, disbursement from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is Issuing Lender was reimbursed therefor by any U.S. Borrower or any Canadian Borrower, as applicable, at a rate per annum that shall at all times be equal to the Applicable ABR Margin plus the ABR as in effect from time to time (in the case of the US Letter of Credit Issuer) or the Applicable ABR Margin plus the Canadian Prime Base Rate as in effect from time to time (plus the Applicable Margin as in the case of the Canadian Letter of Credit Issuer)effect from time to time for U.S. Dollar Denominated Revolving Loans that are maintained as Base Rate Loans; provided thatprovided, notwithstanding anything contained in this Agreement however, to the contrary, (i) unless the US Borrower (or the Canadian Borrower) shall have notified the Administrative Agent (or the Canadian Administrative Agent) and the relevant Letter of Credit Issuer extent such amounts are not reimbursed prior to 10:00 a.m. 12:00 Noon (New York City time) on the third Business Day next following the date receipt by any U.S. Borrower or any Canadian Borrower, as applicable, of notice of such drawing that payment or disbursement or following the US occurrence of a Default or an Event of Default under Section 11.05, interest shall thereafter accrue on the amounts so paid or disbursed by such Issuing Lender (and until reimbursed by any U.S. Borrower or the any Canadian Borrower, as applicable) at a rate per annum equal to 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 applicable U.S. Borrowers or Canadian Borrowers, as the case may be, intends to reimburse the relevant prompt written notice of each Drawing under any Letter of Credit Issuer issued by it for the account of such U.S. Borrowers or Canadian Borrowers, as the case may be; provided that the failure to give any such notice shall in no way affect, impair or diminish the obligations of any such Borrower to reimburse such Unpaid Drawing. Each Drawing under any Letter of Credit shall (unless (x) the Company notifies the Administrative Agent in writing to the contrary, (y) the Borrowers are unable to satisfy the conditions precedent to the making of Revolving Loans set forth in Section 7, or (z) (i) with respect to Drawings under Letters of Credit issued for the account of any U.S. Borrower, the Aggregate U.S. Borrower Exposure at such time exceeds 100% (or, during an Agent Advance Period, 105%) of the U.S. Borrowing Base at such time, (ii) with respect to Drawings under Letters of Credit issued for the account of any Canadian Borrower, the Aggregate Canadian Borrower Exposure at such time exceeds the lesser of (A) 100% (or, during an Agent Advance Period, 105%) of the Canadian Borrowing Base at such time and (B) the Canadian Sub-Limit then in effect or (iii) the Aggregate Exposure at such time exceeds the Total Revolving Loan Commitment at such time, in which case the procedures specified above in this Section 3.05 and in Section 3.04 for funding by the Participants shall apply) constitute a request by the applicable Borrower to the Administrative Agent for a Borrowing of Revolving Loans pursuant to Section 2.03(a) constituting Base Rate Loans (or, at the option of the Administrative Agent and the Swingline Lender in their sole discretion, a Borrowing of Swingline Loans pursuant to Section 2.03(b)) in the amount of such drawing Drawing, and the date with funds other than respect to such Borrowing shall be the proceeds date of payment of the relevant Drawing (it being understood that, in each such case, the Administrative Agent shall notify the Lenders (or the Swingline Lender, as applicable) thereof and the Lenders (or the Swingline Lender, as applicable) shall make available to the Administrative Agent their pro rata portion of such Borrowing (or, in the case of Swingline Loans, the US Borrower Swingline Lender will make available the full amount thereof) and the proceeds thereof shall be applied to reimburse the respective Issuing Lender for such Drawing).
(b) The joint and several obligations of the U.S. Borrowers or the Canadian BorrowerBorrowers, as the case may be, shall be deemed under this Section 3.05 to have given a Notice of Borrowing requesting that, (A) reimburse each Issuing Lender with respect to US drafts, demands and other presentations for payment under Letters of CreditCredit issued by it (each, the Lenders with US Revolving Credit Commitments make US Revolving Credit Loans (which shall be ABR Loansa “Drawing”) and (B) with respect to Canadian Letters of Credit, the Lenders with Canadian Revolving Credit Commitments make Canadian Revolving Credit Loans (which shall be Canadian Prime Rate 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 or the Canadian Administrative Agent shall promptly notify each relevant L/C Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each L/C Participant shall be irrevocably obligated to make a Revolving Credit Loan to the US Borrower or the Canadian Borrower, as applicable, in the manner deemed to have been requested in the amount of its 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 or the Canadian Administrative Agent, as applicable. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent or the Canadian Administrative Agent, as applicable, shall use the proceeds of such Revolving Credit Loans solely for purpose of reimbursing the relevant Letter of Credit Issuer for the related Unpaid Drawing.
(b) The obligations of the US Borrower and the Canadian Borrower under this Section to reimburse the relevant 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-offsetoff, counterclaim or defense to payment that which the US BorrowerCompany, the Canadian any other Borrower or any other Person Subsidiary of the Company may have or have had against such Letter of Credit Issuer, the Administrative Agent, the Canadian Administrative Agent or any Lender (including in its capacity as an L/C Issuing Lender or as a Participant), including 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 non-application nonapplication or misapplication by the beneficiary of the proceeds of such Drawing; provided provided, however, that neither the US Borrower nor the Canadian no Borrower shall be obligated to reimburse such Letter of Credit Issuer any Issuing Lender for any wrongful payment made by such Letter of Credit Issuer Issuing Lender under the a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) If any Lender becomes a Defaulting Lender at any time that any Letter of Credit Issueris outstanding, the U.S. Borrowers or the Canadian Borrowers, as applicable, shall enter into Letter of Credit Back-Stop Arrangements with the relevant Issuing Lender or Issuing Lenders no later than two Business Days after the date such Lender becomes a Defaulting Lender to the extent required by Section 2.15(a).
Appears in 1 contract
Samples: Abl Credit Agreement (Ciena Corp)
Agreement to Repay Letter of Credit Drawings. (a) The US Borrower and the Canadian Borrower hereby agree to reimburse the relevant Letter of Credit Issuer, by making payment in the currency in which the relevant Letter of Credit was denominated to the Administrative Agent (in the case of reimbursement made by the US Borrower) or the Canadian Administrative Agent (in the case of reimbursement made by the Canadian Borrower) in immediately available funds 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 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 reimbursed therefor at a rate per annum that shall at all times be the Applicable ABR Margin plus the ABR as in effect from time to time (in the case of the US Letter of Credit Issuer) or the Applicable ABR Margin plus the Canadian Prime Rate as in effect from time to time (in the case of the Canadian Letter of Credit Issuer); , provided that, notwithstanding anything contained in this Agreement to the contrary, (i) unless the US Borrower (or the Canadian Borrower) shall have notified the Administrative Agent (or the Canadian Administrative Agent) and the relevant Letter of Credit Issuer prior to 10:00 a.m. (New York time) on the Business Day next following the date of such drawing that the US Borrower or the Canadian Borrower, as the case may be, intends to reimburse the relevant Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Loans, the US Borrower or the Canadian Borrower, as the case may be, shall be deemed to have given a Notice of Borrowing requesting that, (A) with respect to US Letters of Credit, that the Lenders with US Revolving Credit Commitments make US Revolving Credit Loans (which shall be ABR Loans) and (B) with respect to Canadian Letters of Credit, the Lenders with Canadian Revolving Credit Commitments make Canadian Revolving Credit Loans (which shall be Canadian Prime Rate 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 or the Canadian Administrative Agent shall promptly notify each relevant L/C Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each L/C Participant shall be irrevocably obligated to make a Revolving Credit Loan to the US Borrower or the Canadian Borrower, as applicable, in the manner deemed to have been requested in the amount of its Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York City time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent or the Canadian Administrative Agent, as applicable. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent or the Canadian Administrative Agent, as applicable, shall use the proceeds of such Revolving Credit Loans solely for purpose of reimbursing the relevant Letter of Credit Issuer for the related Unpaid Drawing.
(b) The obligations of the US Borrower and the Canadian Borrower under this Section 3.4 to reimburse the relevant 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 defense to payment that the US Borrower, the Canadian Borrower or any other Person may have or have had against such such, Letter of Credit Issuer, the Administrative Agent, the Canadian 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 or any non-application or misapplication by the beneficiary of the proceeds of such Drawing; , provided that neither the US Borrower nor the Canadian Borrower shall be obligated to reimburse such 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 on the part of such Letter of Credit Issuer.
Appears in 1 contract
Samples: Credit Agreement (Jostens IH Corp.)
Agreement to Repay Letter of Credit Drawings. (ai) The US Upon the receipt by an Issuing Bank of any drawing from a beneficiary under a Letter of Credit, such Issuing Bank promptly will provide the Applicable Borrower and the Canadian Administrative Agent with telecopy notice thereof. The Applicable Borrower hereby agree to shall reimburse the relevant Letter of Credit Issuer, applicable Issuing Bank by making payment to the Applicable Agent in the same currency in which the relevant Letter of Credit was denominated to the Administrative Agent (in the case of reimbursement made by the US Borrower) or the Canadian Administrative Agent (in the case of reimbursement made by the Canadian Borrower) as such drawing and in immediately available funds for any payment or disbursement made by such Letter LC Disbursement at the account of Credit Issuer under any Letter of Credit (each such amount so paid until reimbursedthe Applicable Agent identified to the Applicable Borrower, an “Unpaid Drawing”) immediately afterafter payment, and in any event (i) if the applicable Issuing Bank has notified the Applicable Borrower of the LC Disbursement by 10:00 a.m., Local Time, on the date of, of such payment, then by 12:00 noon, Local Time, on the date of such payment or (ii) if the applicable Issuing Bank has notified the Applicable Borrower of the LC Disbursement after 10:00 a.m., Local Time, on the date of such payment, then by 12:00 noon, Local Time, on the Business Day following such payment, in each case without setoff or counterclaim, 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 p.m. (New York time) 12:00 noon, Local 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 therefor made as provided above, at a rate per annum that shall at all times be the Applicable ABR Margin plus the ABR as in effect from time to time (in the case of the US Letter of Credit Issuer) or the Applicable ABR Margin plus the Canadian Prime Rate as in effect from time to time (in the case of the Canadian Letter of Credit Issuer); provided that, notwithstanding anything contained in this Agreement equal to the contrary, lesser of (ix) unless the US Borrower (or the Canadian BorrowerA) shall have notified the Administrative Agent (or the Canadian Administrative Agent) and the relevant Letter of Credit Issuer if reimbursement is made prior to 10:00 a.m. (New York time) 12:00 noon, Local Time, on the Business Day next following the date of such drawing that payment, in the case of a Letter of Credit denominated in US Borrower or Dollars, the CB Floating Rate; in the case of a Letter of Credit denominated in Canadian Dollars, the Canadian BorrowerPrime Rate; or, in the case of a Letter of Credit denominated in Euro or Sterling, a rate equal to the rate reasonably determined by the applicable Issuing Bank to be the cost to such Issuing Bank of funding such LC Disbursement or (B) if reimbursement is made at or after 12:00 noon, Local Time, on the Business Day following the date of such payment, 2% above the CB Floating Rate, the Canadian Prime Rate or such cost of funds, as the case may be, intends plus, in each case, the Applicable Margin, and (y) the Highest Lawful Rate, such interest to reimburse be payable on demand.
(ii) Prior to the relevant Maturity Date, unless otherwise paid by the Borrower, such LC Disbursement may, subject to satisfaction of the conditions precedent set forth in Section 2.3 and Section 8.3 (or, if the Majority Lenders so desire, shall automatically and without need for satisfaction of any such conditions precedent), be paid with the proceeds of Revolving Loans or Alternative Currency Loans, according to the currency in which such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Loanswas denominated, the US Borrower or the Canadian Borrower, as the case may be, shall to be deemed to have given a Notice of Borrowing requesting that, (A) with respect to US Letters of Credit, the Lenders with US Revolving Credit Commitments make US Revolving Credit Loans (which shall be ABR Loans) and (B) with respect to Canadian Letters of Credit, the Lenders with Canadian Revolving Credit Commitments make Canadian Revolving Credit Loans (which shall be Canadian Prime Rate Loans) disbursed on the date on which of such drawing is honored LC Disbursement in an amount equal to the amount of such drawing and (ii) the Administrative Agent or the Canadian Administrative Agent shall promptly notify each relevant L/C Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each L/C Participant shall be irrevocably obligated to make a Revolving Credit Loan to the US Borrower or the Canadian Borrower, as applicable, in the manner deemed to have been requested in the amount of its 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 or the Canadian Administrative Agent, as applicable. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent or the Canadian Administrative Agent, as applicable, shall use the proceeds of such Revolving Credit Loans solely for purpose of reimbursing the relevant Letter of Credit Issuer for the related Unpaid DrawingLC Disbursement.
(biii) The Applicable Borrower’s obligations of the US Borrower and the Canadian Borrower under this Section 2.7(d) to reimburse the relevant Letter of Credit Issuer each Issuing Bank with respect to Unpaid Drawings LC Disbursements (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances (except as provided below with respect to the gross negligence or willful misconduct of the applicable Issuing Bank) and irrespective of any set-offsetoff, counterclaim or defense to payment that which the US Borrower, the Canadian Applicable Borrower or any other Person may have or have had against such Letter of Credit Issuer, the Administrative Agent, the Canadian Administrative Agent or any Lender (including such Issuing Bank in its capacity as an L/C Participantthe issuer of a Letter of Credit or any Lender 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 applicable 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; provided that neither drawing, including any of the US following circumstances:
(A) any lack of validity or enforceability of any Letter of Credit, this Agreement or any of the other Loan Documents;
(B) the existence of any claim, setoff, defense or other right which any Borrower nor 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), any Agent, any Issuing Bank, any Lender, or any other Person, whether in connection with this Agreement, any Letter of Credit, the Canadian transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Applicable Borrower shall be obligated to reimburse or any other Person and the beneficiary named in any such Letter of Credit Issuer for Credit);
(C) any wrongful payment made by such Letter of Credit Issuer draft, certificate or any other document presented under the Letter of Credit issued by it as proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents;
(E) the occurrence of any Default or Event of Default; or
(F) any other circumstance which might otherwise constitute a result of acts defense available to, or omissions constituting a discharge of, any Borrower (other than the gross negligence or willful misconduct or of the applicable Issuing Bank).
(iv) Each Borrower also agrees with the Issuing Banks, the Agents and the Lenders that, in the absence of gross negligence on or willful misconduct of any Issuing Bank, such Issuing Bank shall not be responsible for, and the part of such Letter of Credit Issuer.Applicable Borrower’s reimbursement obligations under this
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (ai) The US Borrower and Each U.S. Borrower, in the Canadian Borrower hereby agree to reimburse the relevant case of a Letter of Credit Issuerissued for the account of a U.S. Borrower, hereby jointly and severally agrees, and (ii) each Canadian Borrower, in the case of a Letter of Credit issued for the account of a Canadian Borrower, hereby jointly and severally agrees, in each case, to reimburse each Issuing Lender, by making payment in the currency in which the relevant Letter of Credit was denominated to the Administrative Agent in U.S. Dollars (or, in the case of reimbursement 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 US Borrower) respective Issuing Lender on the date of such payment or the Canadian Administrative Agent (in the case of reimbursement made by the Canadian Borrowerdisbursement) in immediately available funds at the 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 any U.S. Borrower or any 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 U.S. Borrower or any 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 11.05 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, disbursement from and including the date paid or disbursed to but excluding the date such Letter of Credit Issuer is Issuing Lender was reimbursed therefor by any U.S. Borrower or any Canadian Borrower, as applicable, at a rate per annum that shall at all times be equal to the Applicable ABR Margin plus the ABR as in effect from time to time (in the case of the US Letter of Credit Issuer) or the Applicable ABR Margin plus the Canadian Prime Base Rate as in effect from time to time (plus the Applicable Margin as in the case of the Canadian Letter of Credit Issuer)effect from time to time for U.S. Dollar Denominated Revolving Loans that are maintained as Base Rate Loans; provided thatprovided, notwithstanding anything contained in this Agreement however, to the contrary, (i) unless the US Borrower (or the Canadian Borrower) shall have notified the Administrative Agent (or the Canadian Administrative Agent) and the relevant Letter of Credit Issuer extent such amounts are not reimbursed prior to 10:00 a.m. 12:00 Noon (New York City time) on the third Business Day next following the date receipt by any U.S. Borrower or any Canadian Borrower, as applicable, of notice of such drawing that payment or disbursement or following the US occurrence of a Default or an Event of Default under Section 11.05, interest shall thereafter accrue on the amounts so paid or disbursed by such Issuing Lender (and until reimbursed by any U.S. Borrower or the any Canadian Borrower, as applicable) at a rate per annum equal to 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 applicable U.S. Borrowers or Canadian Borrowers, as the case may be, intends to reimburse the relevant prompt written notice of each Drawing under any Letter of Credit Issuer issued by it for the account of such U.S. Borrowers or Canadian Borrowers, as the case may be; provided that the failure to give any such notice shall in no way affect, impair or diminish the obligations of any such Borrower to reimburse such Unpaid Drawing. Each Drawing under any Letter of Credit shall (unless (x) the Company notifies the Administrative Agent in writing to the contrary, (y) the Borrowers are unable to satisfy the conditions precedent to the making of Revolving Loans set forth in Section 7, or (z) (i) with respect to Drawings under Letters of Credit issued for the account of any U.S. Borrower, the Aggregate U.S. Exposure at such time exceeds 100% (or, during an Agent Advance Period, 105%) of the U.S. Borrowing Base at such time, (ii) with respect to Drawings under Letters of Credit issued for the account of any Canadian Borrower, the Aggregate Canadian Exposure at such time exceeds the lesser of (A) 100% (or, during an Agent Advance Period, 105%) of the Canadian Borrowing Base at such time and (B) the Canadian Sub-Limit then in effect or (iii) the Aggregate Exposure at such time exceeds the Total Revolving Loan Commitment at such time, in which case the procedures specified above in this Section 3.05 and in Section 3.04 for funding by the Participants shall apply) constitute a request by the applicable Borrower to the Administrative Agent for a Borrowing of Revolving Loans pursuant to Section 2.03(a) constituting Base Rate Loans (or, at the option of the Administrative Agent and the Swingline Lender in their sole discretion, a Borrowing of Swingline Loans pursuant to Section 2.03(b)) in the amount of such drawing Drawing, and the date with funds other than respect to such Borrowing shall be the proceeds date of payment of the relevant Drawing (it being understood that, in each such case, the Administrative Agent shall notify the Lenders (or the Swingline Lender, as applicable) thereof and the Lenders (or the Swingline Lender, as applicable) shall make available to the Administrative Agent their pro rata portion of such Borrowing (or, in the case of Swingline Loans, the US Borrower Swingline Lender will make available the full amount thereof) and the proceeds thereof shall be applied to reimburse the respective Issuing Lender for such Drawing).
(b) The joint and several obligations of the U.S. Borrowers or the Canadian BorrowerBorrowers, as the case may be, shall be deemed under this Section 3.05 to have given a Notice of Borrowing requesting that, (A) reimburse each Issuing Lender with respect to US drafts, demands and other presentations for payment under Letters of CreditCredit issued by it (each, the Lenders with US Revolving Credit Commitments make US Revolving Credit Loans (which shall be ABR Loansa “Drawing”) and (B) with respect to Canadian Letters of Credit, the Lenders with Canadian Revolving Credit Commitments make Canadian Revolving Credit Loans (which shall be Canadian Prime Rate 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 or the Canadian Administrative Agent shall promptly notify each relevant L/C Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each L/C Participant shall be irrevocably obligated to make a Revolving Credit Loan to the US Borrower or the Canadian Borrower, as applicable, in the manner deemed to have been requested in the amount of its 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 or the Canadian Administrative Agent, as applicable. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent or the Canadian Administrative Agent, as applicable, shall use the proceeds of such Revolving Credit Loans solely for purpose of reimbursing the relevant Letter of Credit Issuer for the related Unpaid Drawing.
(b) The obligations of the US Borrower and the Canadian Borrower under this Section to reimburse the relevant 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-offsetoff, counterclaim or defense to payment that which the US BorrowerCompany, the Canadian any other Borrower or any other Person Subsidiary of the Company may have or have had against such Letter of Credit Issuer, the Administrative Agent, the Canadian Administrative Agent or any Lender (including in its capacity as an L/C Issuing Lender or as a Participant), including including, without limitation, any defense based upon the failure -77- 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 nonapplication or misapplication by the beneficiary of the proceeds of such Drawing; provided provided, however, that neither the US Borrower nor the Canadian no Borrower shall be obligated to reimburse such Letter of Credit Issuer any Issuing Lender for any wrongful payment made by such Letter of Credit Issuer Issuing Lender under the a Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(c) If any Lender becomes a Defaulting Lender at any time that any Letter of Credit Issueris outstanding, the U.S. Borrowers or the Canadian Borrowers, as applicable, shall enter into Letter of Credit Back-Stop Arrangements with the relevant Issuing Lender or Issuing Lenders no later than two Business Days after the date such Lender becomes a Defaulting Lender to the extent required by Section 2.15(a).
Appears in 1 contract
Samples: Abl Credit Agreement (Ciena Corp)
Agreement to Repay Letter of Credit Drawings. (a) The US Borrower (i) 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 Borrower hereby agree to reimburse the relevant Facility Letter of Credit Issuerissued 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 Issuing Lender, by making payment in the currency in which the relevant Letter of Credit was denominated to the Administrative Agent in the applicable Available Currency (or, in the case of reimbursement any unreimbursed payment made in a currency other than an Available Currency under the applicable Facility, the U.S. Dollar Equivalent of such payment or disbursement as determined by the US Borrower) respective Issuing Lender on the date of such payment or the Canadian Administrative Agent (in the case of reimbursement made by the Canadian Borrowerdisbursement) in immediately available funds at the 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 the U.S. Borrowers or the Canadian Borrowers, 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 therefor by such U.S. Borrower or such Canadian Borrower, as applicable, at a rate per annum that shall at all times be equal to the Applicable ABR Margin plus the ABR as in effect from time to time (in the case of the US Letter of Credit Issuer) or the Applicable ABR Margin plus the Canadian Prime 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; (or, in the case of any unreimbursed payment denominated in Canadian Dollars, the interest rate applicable to Canadian Letter of Credit Issuer); provided thatPrime Rate Loans) provided, notwithstanding anything contained in this Agreement however, to the contrary, (i) unless the US Borrower (or the Canadian Borrower) shall have notified the Administrative Agent (or the Canadian Administrative Agent) and the relevant Letter of Credit Issuer extent such amounts are not reimbursed prior to 10:00 a.m. 12:00 Noon (New York City time) on the third Business Day next following the date receipt by any such U.S. Borrower or any such Canadian Borrower, as applicable, of notice of such drawing that payment or disbursement or following the US Borrower occurrence of a Default or an Event of Default under Section 11.01(g) or (h), interest shall thereafter accrue on the amounts so paid or disbursed by such Issuing Lender (until reimbursed by the U.S. Borrowers or the Canadian BorrowerBorrowers, as applicable, at the applicable rate per annum specified above plus 2%, with such interest to be payable on demand. Each Issuing Lender shall give the U.S. Borrowers or the Canadian Borrowers, as the case may be, intends to reimburse the relevant prompt written notice of each Drawing under any Letter of Credit Issuer issued by it for the amount account of such drawing with funds other than Borrowers; provided that the proceeds failure to give any such notice shall in no way affect, impair or diminish the obligations of Loans, any such Borrower hereunder.
(b) The joint and several obligations of the US Borrower U.S. Borrowers or the Canadian BorrowerBorrowers, as the case may be, shall be deemed under this Section 3.05 to have given a Notice of Borrowing requesting that, (A) reimburse each Issuing Lender with respect to US drafts, demands and other presentations for payment under Letters of CreditCredit issued by it (each, the Lenders with US Revolving Credit Commitments make US Revolving Credit Loans (which shall be ABR Loansa “Drawing”) and (B) with respect to Canadian Letters of Credit, the Lenders with Canadian Revolving Credit Commitments make Canadian Revolving Credit Loans (which shall be Canadian Prime Rate 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 or the Canadian Administrative Agent shall promptly notify each relevant L/C Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each L/C Participant shall be irrevocably obligated to make a Revolving Credit Loan to the US Borrower or the Canadian Borrower, as applicable, in the manner deemed to have been requested in the amount of its 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 or the Canadian Administrative Agent, as applicable. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent or the Canadian Administrative Agent, as applicable, shall use the proceeds of such Revolving Credit Loans solely for purpose of reimbursing the relevant Letter of Credit Issuer for the related Unpaid Drawing.
(b) The obligations of the US Borrower and the Canadian Borrower under this Section to reimburse the relevant 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-offsetoff, counterclaim or defense to payment that the US Borrowerwhich AbitibiBowater, the Canadian any Borrower or any other Person Subsidiary of AbitibiBowater may have or have had against such Letter of Credit Issuer, the Administrative Agent, the Canadian Administrative Agent or any Lender under the respective Facility (including in its capacity as an L/C Issuing Lender or as a Participant), including 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 non-application nonapplication or misapplication by the beneficiary of the proceeds of such Drawing; provided provided, however, that neither the US Borrower nor foregoing shall not be construed to excuse the Canadian Borrower shall be obligated applicable Issuing Lender from liability to reimburse such Letter the Borrowers to the extent of Credit Issuer for any wrongful payment made direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by such Letter of Credit Issuer under the Letter of Credit issued Borrowers to the extent permitted by it as a result of applicable law) suffered by the Borrowers that are caused by acts or omissions constituting willful misconduct or gross negligence on the part of such Letter Issuing Lender (as determined by a court of Credit Issuercompetent jurisdiction in a final and non-appealable decision).
Appears in 1 contract
Agreement to Repay Letter of Credit Drawings. (ai) The US Upon the receipt by an Issuing Bank of any drawing from a beneficiary under a Letter of Credit, such Issuing Bank promptly will provide the Applicable Borrower and the Canadian Administrative Agent with telecopy notice thereof. The Applicable Borrower hereby agree to shall reimburse the relevant Letter of Credit Issuer, applicable Issuing Bank by making payment to the Applicable Agent in the same currency in which the relevant Letter of Credit was denominated to the Administrative Agent (in the case of reimbursement made by the US Borrower) or the Canadian Administrative Agent (in the case of reimbursement made by the Canadian Borrower) as such drawing and in immediately available funds for any payment or disbursement made by such Letter LC Disbursement at the account of Credit Issuer under any Letter of Credit (each such amount so paid until reimbursedthe Applicable Agent identified to the Applicable Borrower, an “Unpaid Drawing”) immediately afterafter payment, and in any event (i) if the applicable Issuing Bank has notified the Applicable Borrower of the LC Disbursement by 10:00 a.m., Local Time, on the date of, of such payment, then by 12:00 noon, Local Time, on the date of such payment or (ii) if the applicable Issuing Bank has notified the Applicable Borrower of the LC Disbursement after 10:00 a.m., Local Time, on the date of such payment, then by 12:00 noon, Local Time, on the Business Day following such payment, in each case without setoff or counterclaim, 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 p.m. (New York time) 12:00 noon, Local 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 therefor made as provided above, at a rate per annum that shall at all times be the Applicable ABR Margin plus the ABR as in effect from time to time (in the case of the US Letter of Credit Issuer) or the Applicable ABR Margin plus the Canadian Prime Rate as in effect from time to time (in the case of the Canadian Letter of Credit Issuer); provided that, notwithstanding anything contained in this Agreement equal to the contrary, lesser of (ix) unless the US Borrower (or the Canadian BorrowerA) shall have notified the Administrative Agent (or the Canadian Administrative Agent) and the relevant Letter of Credit Issuer if reimbursement is made prior to 10:00 a.m. (New York time) 12:00 noon, Local Time, on the Business Day next following the date of such drawing that payment, in the case of a Letter of Credit denominated in US Borrower or Dollars, the Alternate Base Rate; in the case of a Letter of Credit denominated in Canadian Dollars, the Canadian BorrowerPrime Rate; or, in the case of a Letter of Credit denominated in Euro or Sterling, a rate equal to the rate reasonably determined by the applicable Issuing Bank to be the cost to such Issuing Bank of funding such LC Disbursement or (B) if reimbursement is made at or after 12:00 noon, Local Time, on the Business Day following the date of such payment, 2% above the Alternate Base Rate, the Canadian Prime Rate or such cost of funds, as the case may be, intends plus, in each case, the Applicable Margin, and (y) the Highest Lawful Rate, such interest to reimburse be payable on demand.
(ii) Prior to the relevant Maturity Date, unless otherwise paid by the Borrower, such LC Disbursement may, subject to satisfaction of the conditions precedent set forth in Section 2.3 and Section 8.3 (or, if the Majority Revolving Lenders so desire, shall automatically and without need for satisfaction of any such conditions precedent), be paid with the proceeds of Revolving Loans or Alternative Currency Loans, according to the currency in which such Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Loanswas denominated, the US Borrower or the Canadian Borrower, as the case may be, shall to be deemed to have given a Notice of Borrowing requesting that, (A) with respect to US Letters of Credit, the Lenders with US Revolving Credit Commitments make US Revolving Credit Loans (which shall be ABR Loans) and (B) with respect to Canadian Letters of Credit, the Lenders with Canadian Revolving Credit Commitments make Canadian Revolving Credit Loans (which shall be Canadian Prime Rate Loans) disbursed on the date on which of such drawing is honored LC Disbursement in an amount equal to the amount of such drawing and (ii) the Administrative Agent or the Canadian Administrative Agent shall promptly notify each relevant L/C Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each L/C Participant shall be irrevocably obligated to make a Revolving Credit Loan to the US Borrower or the Canadian Borrower, as applicable, in the manner deemed to have been requested in the amount of its 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 or the Canadian Administrative Agent, as applicable. Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent or the Canadian Administrative Agent, as applicable, shall use the proceeds of such Revolving Credit Loans solely for purpose of reimbursing the relevant Letter of Credit Issuer for the related Unpaid DrawingLC Disbursement.
(biii) The Applicable Borrower’s obligations of the US Borrower and the Canadian Borrower under this Section (d) to reimburse the relevant Letter of Credit Issuer each Issuing Bank with respect to Unpaid Drawings LC Disbursements (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances (except as provided below with respect to the gross negligence or willful misconduct of the applicable Issuing Bank) and irrespective of any set-offsetoff, counterclaim or defense to payment that which the US Borrower, the Canadian Applicable Borrower or any other Person may have or have had against such Letter of Credit Issuer, the Administrative Agent, the Canadian Administrative Agent or any Revolving Lender (including such Issuing Bank in its capacity as an L/C Participantthe issuer of a Letter of Credit or any Lender 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 applicable 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; provided that neither drawing, including any of the US following circumstances:
(A) any lack of validity or enforceability of any Letter of Credit, this Agreement or any of the other Loan Documents;
(B) the existence of any claim, setoff, defense or other right which any Borrower nor 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), any Agent, any Issuing Bank, any Revolving Lender, or any other Person, whether in connection with this Agreement, any Letter of Credit, the Canadian transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Applicable Borrower shall be obligated to reimburse or any other Person and the beneficiary named in any such Letter of Credit Issuer for Credit);
(C) any wrongful payment made by such Letter of Credit Issuer draft, certificate or any other document presented under the Letter of Credit issued by it as proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents;
(E) the occurrence of any Default or Event of Default; or
(F) any other circumstance which might otherwise constitute a result of acts defense available to, or omissions constituting a discharge of, any Borrower (other than the gross negligence or willful misconduct or of the applicable Issuing Bank).
(iv) Each Borrower also agrees with the Issuing Banks, the Agents and the Revolving Lenders that, in the absence of gross negligence on or willful misconduct of any Issuing Bank, such Issuing Bank shall not be responsible for, and the part Applicable Borrower’s reimbursement obligations under this Section (d) shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged or any dispute between or among any Borrower or any other party and the beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of the Applicable Borrower or any other party against any beneficiary of such Letter of Credit Issueror any such transferee. Neither any Agent, any Revolving Lender nor any Issuing Bank 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, 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 such Issuing Bank; provided that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Applicable Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by each Borrower to the extent permitted by applicable law) suffered by the Applicable Borrower that are caused by such Issuing Bank’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 willful misconduct on the part of the applicable Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank 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, an Issuing Bank 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. It is the intent of the parties hereto that neither any Agent, any Revolving Lender nor any Issuing Bank shall have any liability under this Section 2.7 for the ordinary negligence of such Person.
(v) Unless otherwise agreed by the Administrative Agent, the applicable Issuing Bank shall report in writing to the Administrative Agent (A) on or prior to each Business Day on which such Issuing Bank issues, amends, renews or extends any Letter of Credit, the Letter of Credit with respect to which such action was taken, the date of such issuance, amendment, renewal or extension, the Applicable Borrower for whose account the Letter of Credit was issued, and the currency and aggregate face amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amount thereof shall have changed), it being understood that (1) with respect to any such issuance, renewal, extension or amendment that results in an increase in the amount of any Letter of Credit, the Issuing Bank shall, upon its receipt of the Applicable Borrower’s request therefor, request written confirmation from the Administrative Agent that such issuance, renewal, extension or amendment does not result in non- compliance with this Agreement and (2) the Administrative Agent shall promptly and in any event not later than 12:00 noon, Local Time, at the location of the Applicable Agent, on the proposed effective date of such issuance, amendment, renewal or extension, provide such confirmation or indication of non-compliance; (B) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date, currency and amount of such LC Disbursement, (C) on any Business Day on which the Applicable Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of the failure and the currency and amount of such LC Disbursement and (D) on any other Business Day, such other information as the Administrative Agent (or any Revolving Lender, through the Administrative Agent) shall reasonably request as to Letters of Credit.
(vi) If the maturity of the Loans has been accelerated pursuant to Article XI, all amounts (without duplication) (A) that any Borrower is at the time or becomes thereafter required to reimburse or otherwise pay to the Applicable Agent or any Issuing Bank in respect of LC Disbursements made under any Letter of Credit denominated in an Alternative Currency (other than amounts in respect of which such Borrower has deposited Cash Collateral, if such Cash Collateral was deposited in the applicable currency), (B) that the Revolving Lenders are at the time or become thereafter required to pay to the Applicable Agent (and the Applicable Agent is at the time or becomes thereafter required to distribute to an Issuing Bank) pursuant to Section 2.7(c) in respect of unreimbursed LC Disbursements made pursuant to any Letter of Credit denominated in an Alternative Currency and (C) of each Revolving Lender’s participation in any Letter of Credit denominated in an Alternative Currency under which an LC Disbursement has been made shall, automatically and with no further action required, be converted into the US Dollar Equivalent calculated using the Spot Exchange Rate on such date (or in the case of any LC Disbursement made after such date, on the date such LC Disbursement is made) of such amounts. On and after such conversion, all amounts accruing and owed to any Agent, the applicable Issuing Bank or any Revolving Lender in respect of the obligations described in this paragraph shall accrue and be payable in US Dollars at the rates otherwise applicable hereunder.
(vii) Unless otherwise agreed by the applicable Issuing Bank and the Applicable Borrower when a Letter of Credit is issued, (A) the rules of the “International Standby Practices 1998” (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit, and (B) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance, shall apply to each commercial Letter of Credit.
Appears in 1 contract
