Common use of Borrower Liabilities Clause in Contracts

Borrower Liabilities. (i) If an FCI Issuing Lender receives a request for payment under any FCI (including from an Indirect FCI Issuing Lender under a Counter-Guarantee) issued by it, it shall promptly (and before any payment is made in respect thereof) inform the relevant Borrower, the Foreign Trade Facility Agent and the Administrative Agent accordingly. A Borrower’s obligation to reimburse any payment made by an FCI Issuing Lender under an FCI (each, an “FCI Disbursement”) 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 FCI, of any request for the issuance thereof or of this Agreement, or of any term or provision therein or herein, or of any underlying agreement (ii) any draft or other document presented under an FCI 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 FCI Issuing Lender under an FCI against presentation of a draft or other document that does not comply with the terms of such FCI, 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, constitute a legal or equitable discharge of, or provide a right of setoff against, such Borrower’s obligations hereunder. Neither the Foreign Trade Facility Agent, the Lenders nor any FCI Issuing Lender, 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 FCI 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 FCI (including any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in the finding of true facts or law or any consequence arising from causes beyond the control of the applicable FCI Issuing Lender; provided that neither of the foregoing sentences shall be construed to excuse such FCI Issuing Lender 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 such Borrower that are caused by such FCI Issuing Lender’s gross negligence, willful misconduct or failure to exercise care (each as determined in a final and non-appealable judgment of a court of competent jurisdiction) when determining whether drafts and other documents presented under an FCI comply with the terms thereof, or if the obligation to honor a request for payment under an FCI depends upon non-documentary conditions, whether questions of facts or law at issue in the underlying transaction justify the payment by the FCI Issuing Lender. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, (i) with respect to documents presented which appear on their face to be in substantial compliance with the terms of an FCI, an FCI Issuing Lender 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 FCI; or (ii) if the obligation to honor a request for payment under an FCI depends upon non-documentary conditions, an FCI Issuing Lender may, in its sole discretion, either accept and make payment upon such facts presented in connection with the request for payment, without responsibility for further investigation, regardless of any notice or information to the contrary; provided, however, that the applicable Borrower does not promptly provide irrefutable evidence that facts presented in connection with the request for payment are not true, or refuse to accept and make payment upon such facts. Without limiting any rights that the applicable FCI Issuing Lender may have under applicable law, (i) the applicable Borrower’s aggregate remedies against the applicable FCI Issuing Lender for wrongfully honoring a presentation or wrongfully retaining honored documents shall in no event exceed the aggregate amount paid by such Borrower to such FCI Issuing Lender with respect to the honored presentation, plus interest at the rate equal to the Adjusted Eurocurrency Rate for Interest Periods of one month, (ii) the applicable FCI Issuing Lender may accept as a draft any written or electronic demand or request for payment under an FCI, even if non-negotiable or not in the form of a draft, and may disregard any requirement that such draft, demand or request bear any or adequate reference to the FCI, and (iii) the applicable FCI Issuing Lender may purchase or discount an accepted draft or deferred payment obligation incurred under an FCI without affecting the amount or timing of the reimbursement due from the applicable Borrower. (ii) The relevant Borrower shall, upon demand from the relevant FCI Issuing Lender, reimburse such FCI Issuing Lender for, and irrevocably and unconditionally indemnify such FCI Issuing Lender against any sum paid or payable in accordance with clause (i) above under an FCI issued by such FCI Issuing Lender at the request of such Borrower and against all other liabilities, reasonable costs (including any costs incurred in funding any amount paid by such FCI Issuing Lender under or in connection with such FCI), claims, losses and expenses which such FCI Issuing Lender may at any time (whether before, on or after the Foreign Trade Maturity Date) reasonably incur or sustain in connection with or arising out of any such FCI. Each such reimbursement shall be made in the currency in which the applicable FCI was issued. If an FCI Issuing Lender shall make any FCI Disbursement, then, unless the relevant Borrower shall reimburse such FCI Disbursement in full on the date such FCI Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such FCI Disbursement is made to but excluding the date that such Borrower reimburses such FCI Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 1.0%; provided that if such Borrower fails to reimburse such FCI Disbursement within five calendar days (including for any interest incurred in connection with such FCI Disbursement pursuant to the preceding provisions of this sentence), then such entire unpaid amount shall bear interest, for each day from and including the sixth calendar day after the date such FCI Disbursement is made to but excluding the date that such Borrower reimburses such FCI Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 2.0%.

Borrower Liabilities. (i) If an FCI a Foreign Issuing Lender receives a request for payment under any FCI Foreign Credit Instrument (including from an Indirect FCI Foreign Issuing Lender under a Counter-Guarantee) issued by it, it shall promptly (and before any payment is made in respect thereof) inform the relevant Borrower, the Foreign Trade Facility Agent and the Administrative Agent accordingly. A Borrower’s obligation to reimburse any payment made by an FCI a Foreign Issuing Lender under an FCI a Foreign Credit Instrument (each, an a “FCI Foreign Credit Disbursement”) 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 FCIForeign Credit Instrument, of any request for the issuance thereof or of this Agreement, or of any term or provision therein or hereintherein, or of any (if any) underlying agreement (ii) any draft or other document presented under an FCI a Foreign Credit Instrument 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 FCI Foreign Issuing Lender under an FCI a Foreign Credit Instrument against presentation of a draft or other document that does not comply with the terms of such FCIForeign Credit Instrument, 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, constitute a legal or equitable discharge of, or provide a right of setoff against, such Borrower’s obligations hereunder. Neither the Foreign Trade Facility Agent, the Lenders nor any FCI Foreign Issuing Lender, 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 FCI Foreign Credit Instrument 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 FCI Foreign Credit Instrument (including any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in the finding of true facts or law or any consequence arising from causes beyond the control of the applicable FCI Foreign Issuing Lender; provided that neither of the foregoing sentences shall be construed to excuse such FCI Foreign Issuing Lender 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 such Borrower that are caused by such FCI Foreign Issuing Lender’s gross negligence, willful misconduct or failure to exercise care (each as determined in a final and non-appealable judgment of a court of competent jurisdiction) when determining whether drafts and other documents presented under an FCI a Foreign Credit Instrument comply with the terms thereof, or if the obligation to honor a request for payment under an FCI a Foreign Credit Instrument depends upon non-documentary conditions, whether questions of facts or law at issue in the underlying transaction justify the payment by the FCI Foreign Issuing Lender. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, (i) with respect to documents presented which appear on their face to be in substantial compliance with the terms of an FCIa Foreign Credit Instrument, an FCI a Foreign Issuing Lender 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 FCIForeign Credit Instrument; or (ii) if the obligation to honor a request for payment under an FCI a Foreign Credit Instrument depends upon non-documentary conditions, an FCI a Foreign Issuing Lender may, in its sole discretion, either accept and make payment upon such facts presented in connection with the request for payment, without responsibility for further investigation, regardless of any notice or information to the contrary; provided, however, that the applicable Borrower does not promptly provide irrefutable evidence that facts presented in connection with the request for payment are not true, or refuse to accept and make payment upon such facts. Without limiting any rights that the applicable FCI Foreign Issuing Lender may have under applicable law, (i) the applicable Borrower’s aggregate remedies against the applicable FCI Foreign Issuing Lender for wrongfully honoring a presentation or wrongfully retaining honored documents shall in no event exceed the aggregate amount paid by such Borrower to such FCI Foreign Issuing Lender with respect to the honored presentation, plus interest at the rate equal to the Adjusted Eurocurrency LIBO Rate for Interest Periods of one month, (ii) the applicable FCI Issuing Lender may accept as a draft any written or electronic demand or request for payment under an FCIa Foreign Credit Instrument, even if non-negotiable or not in the form of a draft, and may disregard any requirement that such draft, demand or request bear any or adequate reference to the FCIForeign Credit Instrument, and (iii) the applicable FCI Issuing Lender may purchase or discount an accepted draft or deferred payment obligation incurred under an FCI a Foreign Credit Instrument without affecting the amount or timing of the reimbursement due from the applicable Borrower. (ii) The relevant Borrower shall, upon demand from the relevant FCI Foreign Issuing Lender, reimburse such FCI Foreign Issuing Lender for, and irrevocably and unconditionally indemnify such FCI Foreign Issuing Lender against any sum paid or payable in accordance with clause (i) above under an FCI a Foreign Credit Instrument issued by such FCI Foreign Issuing Lender at the request of such Borrower and against all other liabilities, reasonable costs (including any costs incurred in funding any amount paid by such FCI Foreign Issuing Lender under or in connection with such FCIForeign Credit Instrument), claims, losses and expenses which such FCI Foreign Issuing Lender may at any time (whether before, on or after the Foreign Trade Maturity Date) reasonably incur or sustain in connection with or arising out of any such FCIForeign Credit Instrument. Each such reimbursement shall be made in Dollars in the amount of the Dollar Equivalent of the currency in which the applicable FCI Foreign Credit Disbursement was issuedmade. If an FCI a Foreign Issuing Lender shall make any FCI Foreign Credit Disbursement, then, unless the relevant Borrower shall reimburse such FCI Foreign Credit Disbursement in full on the date such FCI Foreign Credit Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such FCI Foreign Credit Disbursement is made to but excluding the date that such Borrower reimburses such FCI Foreign Credit Disbursement, at a fluctuating the rate per annum rate equal then applicable to the Alternate Base Rate plus 1.0%ABR Domestic Revolving Loans; provided that if such Borrower fails to reimburse such FCI Foreign Credit Disbursement within five calendar days upon demand (including for any interim interest incurred in connection with such FCI Foreign Credit Disbursement pursuant to the preceding provisions of this sentence), then such entire unpaid amount Section 2.15(c)(ii) shall bear interest, for each day from and including apply in respect of the sixth calendar day after the date such FCI Disbursement is made to but excluding the date that such Borrower reimburses such FCI Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 2.0%overdue amounts.

Borrower Liabilities. (i) If an FCI a Foreign Issuing Lender receives a request for payment under any FCI Foreign Credit Instrument (including from an Indirect FCI Foreign Issuing Lender under a Counter-Guarantee) issued by it, it shall promptly (and before any payment is made in respect thereof) inform the relevant Borrower, the Foreign Trade Facility Agent and the Administrative Agent accordingly. A Borrower’s obligation to reimburse any payment made by an FCI a Foreign Issuing Lender under an FCI a Foreign Credit Instrument (each, an a “FCI Foreign Credit Disbursement”) 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 FCIForeign Credit Instrument, of any request for the issuance thereof or of this Agreement, or of any term or provision therein or hereintherein, or of any (if any) underlying agreement (ii) any draft or other document presented under an FCI a Foreign Credit Instrument 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 FCI Foreign Issuing Lender under an FCI a Foreign Credit Instrument against presentation of a draft or other document that does not comply with the terms of such FCIForeign Credit Instrument, 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, constitute a legal or equitable discharge of, or provide a right of setoff against, such Borrower’s obligations hereunder. Neither the Foreign Trade Facility Agent, the Lenders nor any FCI Foreign Issuing Lender, 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 FCI Foreign Credit Instrument 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 FCI Foreign Credit Instrument (including any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in the finding of true facts or law or any consequence arising from causes beyond the control of the applicable FCI Foreign Issuing Lender; provided that neither of the foregoing sentences shall be construed to excuse such FCI Foreign Issuing Lender 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 such Borrower that are caused by such FCI Foreign Issuing Lender’s gross negligence, willful misconduct or failure to exercise care (each as determined in a final and non-appealable judgment of a court of competent jurisdiction) when determining whether drafts and other documents presented under an FCI a Foreign Credit Instrument comply with the terms thereof, or if the obligation to honor a request for payment under an FCI a Foreign Credit Instrument depends upon non-documentary conditions, whether questions of facts or law at issue in the underlying transaction justify the payment by the FCI Foreign Issuing Lender. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, (i) with respect to documents presented which appear on their face to be in substantial compliance with the terms of an FCIa Foreign Credit Instrument, an FCI a Foreign Issuing Lender 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 FCIForeign Credit Instrument; or (ii) if the obligation to honor a request for payment under an FCI a Foreign Credit Instrument depends upon non-documentary conditions, an FCI a Foreign Issuing Lender may, in its sole discretion, either accept and make payment upon such facts presented in connection with the request for payment, without responsibility for further investigation, regardless of any notice or information to the contrary; provided, however, that the applicable Borrower does not promptly provide irrefutable evidence that facts presented in connection with the request for payment are not true, or refuse to accept and make payment upon such facts. Without limiting any rights that the applicable FCI Foreign Issuing Lender may have under applicable law, (i) the applicable Borrower’s aggregate remedies against the applicable FCI Foreign Issuing Lender for wrongfully honoring a presentation or wrongfully retaining honored documents shall in no event exceed the aggregate amount paid by such Borrower to such FCI Foreign Issuing Lender with respect to the honored presentation, plus interest at the rate equal to the Adjusted Eurocurrency LIBO Rate for Interest Periods of one month, (ii) the applicable FCI Issuing Lender may accept as a draft any written or electronic demand or request for payment under an FCIa Foreign Credit Instrument, even if non-negotiable or not in the form of a draft, and may disregard any requirement that such draft, demand or request bear any or adequate reference to the FCIForeign Credit Instrument, and (iii) the applicable FCI Issuing Lender may purchase or discount an accepted draft or deferred payment obligation incurred under an FCI a Foreign Credit Instrument without affecting the amount or timing of the reimbursement due from the applicable Borrower. (ii) The relevant Borrower shall, upon demand from the relevant FCI Foreign Issuing Lender, reimburse such FCI Foreign Issuing Lender for, and irrevocably and unconditionally indemnify such FCI Foreign Issuing Lender against any sum paid or payable in accordance with clause (i) above under an FCI a Foreign Credit Instrument issued by such FCI Foreign Issuing Lender at the request of such Borrower and against all other liabilities, reasonable costs (including any costs incurred in funding any amount paid by such FCI Foreign Issuing Lender under or in connection with such FCIForeign Credit Instrument), claims, losses and expenses which such FCI Foreign Issuing Lender may at any time (whether before, on or after the Foreign Trade Maturity Date) reasonably incur or sustain in connection with or arising out of any such FCIForeign Credit Instrument. Each such reimbursement shall be made in the currency in which the applicable FCI Foreign Credit Instrument was issued. If an FCI a Foreign Issuing Lender shall make any FCI Foreign Credit Disbursement, then, unless the relevant Borrower shall reimburse such FCI Foreign Credit Disbursement in full on the date such FCI Foreign Credit Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such FCI Foreign Credit Disbursement is made to but excluding the date that such Borrower reimburses such FCI Foreign Credit Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 1.0%; provided that if such Borrower fails to reimburse such FCI Foreign Credit Disbursement within five calendar days (including for any interim interest incurred in connection with such FCI Foreign Credit Disbursement pursuant to the preceding provisions of this sentence), then such entire the unpaid amount thereof shall bear interest, for each day from and including the sixth calendar day after the date such FCI Foreign Credit Disbursement is made to but excluding the date that such Borrower reimburses such FCI Foreign Credit Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 2.0%.

Borrower Liabilities. (i) If an FCI Issuing Lender receives a request for payment under any FCI (including from an Indirect FCI Issuing Lender under a Counter-Guarantee) issued by it, it shall promptly (and before any payment is made in respect thereof) inform the relevant Borrower, the Foreign Trade Facility Agent and the Administrative Agent accordingly. A Borrower’s obligation to reimburse any payment made by an FCI Issuing Lender under an FCI (each, an “FCI Disbursement”) 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 (iA) any lack of validity or enforceability of any FCI, of any request for the issuance thereof or of this Agreement, or of any term or provision therein or herein, or of any underlying agreement (iiB) any draft or other document presented under an FCI proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iiiC) payment by the applicable FCI Issuing Lender under an FCI against presentation of a draft or other document that does not comply with the terms of such FCI, or (ivD) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this SectionSection 2.6, constitute a legal or equitable discharge of, or provide a right of setoff against, such BorrowerXxxxxxxx’s obligations hereunder. Neither the Foreign Trade Facility Agent, the Lenders nor any FCI Issuing Lender, 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 FCI 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 FCI (including any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in the finding of true facts or law or any consequence arising from causes beyond the control of the applicable FCI Issuing Lender; provided that provided, that, neither of the foregoing sentences shall be construed to excuse such FCI Issuing Lender 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 lawLaw) suffered by such Borrower that are caused by such FCI Issuing Lender’s gross negligence, willful misconduct or failure to exercise care (each as determined in a final and non-appealable judgment of a court of competent jurisdiction) when determining whether drafts and other documents presented under an FCI comply with the terms thereof, or if the obligation to honor a request for payment under an FCI depends upon non-documentary conditions, whether questions of facts or law at issue in the underlying transaction justify the payment by the FCI Issuing Lender. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, (i1) with respect to documents presented which appear on their face to be in substantial compliance with the terms of an FCI, an FCI Issuing Lender 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 FCI; , or (ii2) if the obligation to honor a request for payment under an FCI depends upon non-documentary conditions, an FCI Issuing Lender may, in its sole discretion, either accept and make payment upon such facts presented in connection with the request for payment, without responsibility for further investigation, regardless of any notice or information to the contrary; provided, howeverthat, that the applicable Borrower does not promptly provide irrefutable evidence that facts presented in connection with the request for payment are not true, or refuse to accept and make payment upon such facts. Without limiting any rights that the applicable FCI Issuing Lender may have under applicable law, Law: (iI) the applicable Borrower’s aggregate remedies against the applicable FCI Issuing Lender for wrongfully honoring a presentation or wrongfully retaining honored documents shall in no event exceed the aggregate amount paid by such Borrower to such FCI Issuing Lender with respect to the honored presentation, plus interest at the rate equal to the Adjusted Eurocurrency Eurodollar Rate for Interest Periods of one (1) month, ; (iiII) the applicable FCI Issuing Lender may accept as a draft any written or electronic demand or request for payment under an FCI, even if non-negotiable or not in the form of a draft, and may disregard any requirement that such draft, demand or request bear any or adequate reference to the FCI, ; and (iiiIII) the applicable FCI Issuing Lender may purchase or discount an accepted draft or deferred payment obligation incurred under an FCI without affecting the amount or timing of the reimbursement due from the applicable Borrower. (ii) The relevant Borrower shall, upon demand from the relevant FCI Issuing Lender, reimburse such FCI Issuing Lender for, and irrevocably and unconditionally indemnify such FCI Issuing Lender against against, any sum paid or payable in accordance with clause (ih)(i) above under an FCI issued by such FCI Issuing Lender at the request of such Borrower and against all other liabilities, reasonable costs (including any costs incurred in funding any amount paid by such FCI Issuing Lender under or in connection with such FCI), claims, losses and expenses which such FCI Issuing Lender may at any time (whether before, on or after the Foreign Trade Maturity Date) reasonably incur or sustain in connection with or arising out of any such FCI. Each such reimbursement shall be made in the currency in which the applicable FCI was issued. If an FCI Issuing Lender shall make any FCI Disbursement, then, unless the relevant Borrower shall reimburse such FCI Disbursement in full on the date such FCI Disbursement is made, the unpaid amount thereof shall bear interest, for each day from from, and including including, the date such FCI Disbursement is made to to, but excluding excluding, the date that such Borrower reimburses such FCI Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 1.0one percent (1.00%); provided that provided, that, if such Borrower fails to reimburse such FCI Disbursement within five (5) calendar days (including for any interest incurred in connection with such FCI Disbursement pursuant to the preceding provisions of this sentence), then such entire unpaid amount shall bear interest, for each day from from, and including including, the sixth (6th) calendar day after the date such FCI Disbursement is made to to, but excluding excluding, the date that such Borrower reimburses such FCI Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 2.0two percent (2.00%).

Borrower Liabilities. (i) If an FCI Issuing Lender receives a request for payment under any FCI (including from an Indirect FCI Issuing Lender under a Counter-Guarantee) issued by it, it shall promptly (and before any payment is made in respect thereof) inform the relevant Borrower, the Foreign Trade Facility Agent and the Administrative Agent accordingly. A Borrower’s obligation to reimburse any payment made by an FCI Issuing Lender under an FCI (each, an “FCI Disbursement”) 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 (iA) any lack of validity or enforceability of any FCI, of any request for the issuance thereof or of this Agreement, or of any term or provision therein or herein, or of any underlying agreement (iiB) any draft or other document presented under an FCI proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iiiC) payment by the applicable FCI Issuing Lender under an FCI against presentation of a draft or other document that does not comply with the terms of such FCI, or (ivD) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, such Borrower’s obligations hereunder. Neither the Foreign Trade Facility Agent, the Lenders nor any FCI Issuing Lender, 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 FCI 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 FCI (including any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in the finding of true facts or law or any consequence arising from causes beyond the control of the applicable FCI Issuing Lender; provided that neither of the foregoing sentences shall be construed to excuse such FCI Issuing Lender 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 such Borrower that are caused by such FCI Issuing Lender’s gross negligence, willful misconduct or failure to exercise care (each as determined in a final and non-appealable judgment of a court of competent jurisdiction) when determining whether drafts and other documents presented under an FCI comply with the terms thereof, or if the obligation to honor a request for payment under an FCI depends upon non-documentary conditions, whether questions of facts or law at issue in the underlying transaction justify the payment by the FCI Issuing Lender. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, (i1) with respect to documents presented which appear on their face to be in substantial compliance with the terms of an FCI, an FCI Issuing Lender 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 FCI; or (ii2) if the obligation to honor a request for payment under an FCI depends upon non-documentary conditions, an FCI Issuing Lender may, in its sole discretion, either accept and make payment upon such facts presented in connection with the request for payment, without responsibility for further investigation, regardless of any notice or information to the contrary; provided, however, provided that the applicable Borrower does not promptly provide irrefutable evidence that facts presented in connection with the request for payment are not true, or refuse to accept and make payment upon such facts. Without limiting any rights that the applicable FCI Issuing Lender may have under applicable law, (iI) the applicable Borrower’s aggregate remedies against the applicable FCI Issuing Lender for wrongfully honoring a presentation or wrongfully retaining honored documents shall in no event exceed the aggregate amount paid by such Borrower to such FCI Issuing Lender with respect to the honored presentation, plus interest at the rate equal to the Adjusted Eurocurrency Rate Term SOFR for an Interest Periods Period of one month, (iiII) the applicable FCI Issuing Lender may accept as a draft any written or electronic demand or request for payment under an FCI, even if non-negotiable or not in the form of a draft, and may disregard any requirement that such draft, demand or request bear any or adequate reference to the FCI, and (iiiIII) the applicable FCI Issuing Lender may purchase or discount an accepted draft or deferred payment obligation incurred under an FCI without affecting the amount or timing of the reimbursement due from the applicable Borrower. (ii) The relevant Borrower shall, upon demand from the relevant FCI Issuing Lender, reimburse such FCI Issuing Lender for, and irrevocably and unconditionally indemnify such FCI Issuing Lender against any sum paid or payable in accordance with clause (i) above under an FCI issued by such FCI Issuing Lender at the request of such Borrower and against all other liabilities, reasonable costs (including any costs incurred in funding any amount paid by such FCI Issuing Lender under or in connection with such FCI), claims, losses and expenses which such FCI Issuing Lender may at any time (whether before, on or after the Foreign Trade Maturity Date) reasonably incur or sustain in connection with or arising out of any such FCI. Each such reimbursement shall be made in the currency in which the applicable FCI was issued. If an FCI Issuing Lender shall make any FCI Disbursement, then, unless the relevant Borrower shall reimburse such FCI Disbursement in full on the date such FCI Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such FCI Disbursement is made to but excluding the date that such Borrower reimburses such FCI Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 1.0%; provided that if such Borrower fails to reimburse such FCI Disbursement within five calendar days (including for any interest incurred in connection with such FCI Disbursement pursuant to the preceding provisions of this sentence), then such entire unpaid amount shall bear interest, for each day from and including the sixth calendar day after the date such FCI Disbursement is made to but excluding the date that such Borrower reimburses such FCI Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 2.0%.

Borrower Liabilities. (i) If an FCI a Foreign Issuing Lender receives a request for payment under any FCI Foreign Credit Instrument (including from an a Fronting Guarantor or Indirect FCI Foreign Issuing Lender under a Counter-Guarantee) issued by it, it shall promptly (and before any payment is made in respect thereof) inform the relevant Borrower, the Foreign Trade Facility Agent and the Administrative Agent accordingly. A Borrower’s obligation to reimburse Such Foreign Issuing Lender may, upon receipt of such demand but not earlier than one Business Day following the notification of the relevant Borrower of the request for payment, make any payment made by an FCI Issuing Lender under an FCI (each, an “FCI a "Foreign Credit Disbursement”") shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under the relevant Foreign Credit Instrument without any and all circumstances whatsoever and irrespective of (i) any lack of validity reference to or enforceability of any FCI, of any request for the issuance thereof or of this Agreement, or of any term or provision therein or herein, or of any underlying agreement (ii) any draft or other document presented under an FCI proving to be forged, fraudulent or invalid in any respect further authority from such Borrower or any statement therein being untrue other investigation or inaccurate in any respectinquiry, (iii) payment by the applicable FCI Issuing Lender under an FCI against presentation of a draft or other document that does not comply with the terms of such FCI, 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, constitute a legal or equitable discharge of, or provide a right of setoff against, such Borrower’s obligations hereunder. Neither the Foreign Trade Facility Agent, the Lenders nor any FCI Issuing Lender, 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 FCI 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 FCI (including any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in the finding of true facts or law or any consequence arising from causes beyond the control of the applicable FCI Issuing Lender; provided that neither of (A) the foregoing sentences shall be construed to excuse such FCI Issuing Lender 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 such Borrower that are caused by such FCI Issuing Lender’s gross negligence, willful misconduct or failure to exercise care (each as determined in a final and non-appealable judgment of a court of competent jurisdiction) when determining whether drafts and other documents presented under an FCI comply with the terms thereof, or if the obligation to honor a request demand for payment under an FCI depends upon non-documentary conditions, whether questions of facts or law at issue in the underlying transaction justify the payment by the FCI Issuing Lender. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, (i) with respect to documents presented which appear appears on their its face to be in substantial compliance with the terms specified in such Foreign Credit Instrument, (B) the demand is not obviously fraudulent or forged or conclusive evidence is shown thereof and (C) in case of an FCIsuretyships (other than upon first demand), an FCI Issuing such Lender maywill take into consideration permissible objections or defenses relating to the underlying commercial contract with the beneficiary to the extent that such Borrower, after having been advised of the receipt of a payment demand, has promptly given written evidence thereof to such Lender, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information order that it can transmit the same to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms beneficiary of such FCI; or (ii) if the obligation to honor a request for payment under an FCI depends upon non-documentary conditions, an FCI Issuing Lender may, in its sole discretion, either accept and make payment upon such facts presented in connection with the request for payment, without responsibility for further investigation, regardless of any notice or information to the contrary; provided, however, that the applicable Borrower does not promptly provide irrefutable evidence that facts presented in connection with the request for payment are not true, or refuse to accept and make payment upon such facts. Without limiting any rights that the applicable FCI Issuing Lender may have under applicable law, (i) the applicable Borrower’s aggregate remedies against the applicable FCI Issuing Lender for wrongfully honoring a presentation or wrongfully retaining honored documents shall in no event exceed the aggregate amount paid by such Borrower to such FCI Issuing Lender with respect to the honored presentation, plus interest at the rate equal to the Adjusted Eurocurrency Rate for Interest Periods of one month, (ii) the applicable FCI Issuing Lender may accept as a draft any written or electronic demand or request for payment under an FCI, even if non-negotiable or not in the form of a draft, and may disregard any requirement that such draft, demand or request bear any or adequate reference to the FCI, and (iii) the applicable FCI Issuing Lender may purchase or discount an accepted draft or deferred payment obligation incurred under an FCI without affecting the amount or timing of the reimbursement due from the applicable BorrowerForeign Credit Instrument. (ii) The relevant Each Borrower shall, upon demand from the relevant FCI Foreign Issuing Lender, reimburse such FCI Issuing Lender for, and irrevocably and unconditionally indemnify such FCI Issuing Lender against any sum paid or payable in accordance with clause (i) above under an FCI a Foreign Credit Instrument issued by such FCI Issuing Lender at the request of such Borrower and against all other liabilities, reasonable costs (including any costs incurred in funding any amount paid by such FCI Issuing Lender under or in connection with such FCIForeign Credit Instrument), claims, losses and expenses which such FCI Issuing Lender may at any time (whether before, on or after the Foreign Trade Maturity Date) reasonably incur or sustain in connection with or arising out of any such FCI. Each such reimbursement shall be made in the currency in which the applicable FCI was issued. Foreign Credit Instrument. (iii) If an FCI a Foreign Issuing Lender shall make has made payment to another Foreign Issuing Lender in accordance with Section 2.6(s), such Lender shall, in addition to any FCI Disbursement, then, unless right assigned to it against the relevant Borrower shall reimburse such FCI Disbursement in full on the date such FCI Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such FCI Disbursement is made to but excluding the date that such Borrower reimburses such FCI Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 1.0%; provided that if such Borrower fails to reimburse such FCI Disbursement within five calendar days (including for any interest incurred in connection with such FCI Disbursement pursuant payment, be entitled to demand from such Borrower to be indemnified against any such payment in accordance with clause (ii) above. (iv) Each Borrower agrees that if (A) it has requested the preceding provisions issuance of this sentencea surety payable upon first demand with respect to an obligation in the underlying contract (governed by German law) which provides for warranty and/or performance obligations to be secured by means of a Foreign Credit Instrument and (B) the classification of such obligation to provide for such surety payable upon first demand as an individual agreement between the relevant counterparties is disputed (clauses (A) and (B) together, the "Invalid First Demand Feature"), then any invalidity of the underlying contract, the instruction to issue such entire unpaid amount Foreign Credit Instrument or of the Foreign Credit Instrument itself resulting from the Invalid First Demand Feature shall bear interestbe disregarded for any purposes under and in connection with this Agreement, in particular in connection with the indemnity provided for each day in this Section 2.6(h), and that it will refrain (x) from taking any steps of any kind which are based on the Invalid First Demand Feature and including which are destined to hinder the sixth calendar day after relevant Foreign Issuing Lender from fulfilling its obligations under and in connection with such Foreign Credit Instrument in compliance with its terms and (y) from disputing any reimbursement claims based on the date Invalid First Demand Feature, unless it provides such FCI Disbursement is made Foreign Issuing Lender with obvious and undisputable documentary evidence for a fraudulent demand under such Foreign Credit Instrument enabling and giving such Lender the right to but excluding the date that refuse to honor such Borrower reimburses such FCI Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 2.0%demand.

Borrower Liabilities. (i) If an FCI a Foreign Issuing Lender receives a request for payment under any FCI Foreign Credit Instrument (including from an a Fronting Guarantor or Indirect FCI Foreign Issuing Lender under a Counter-Guarantee) issued by it, it shall promptly (and before any payment is made in respect thereof) inform the relevant Borrower, the Foreign Trade Facility Agent and the Administrative Agent accordingly. A Borrower’s obligation to reimburse Such Foreign Issuing Lender may, upon receipt of such demand but not earlier than one Business Day following the notification of the relevant Borrower of the request for payment, make any payment made by an FCI Issuing Lender under an FCI (each, an a “FCI Foreign Credit Disbursement”) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under the relevant Foreign Credit Instrument without any and all circumstances whatsoever and irrespective of (i) any lack of validity reference to or enforceability of any FCI, of any request for the issuance thereof or of this Agreement, or of any term or provision therein or herein, or of any underlying agreement (ii) any draft or other document presented under an FCI proving to be forged, fraudulent or invalid in any respect further authority from such Borrower or any statement therein being untrue other investigation or inaccurate in any respectinquiry, (iii) payment by the applicable FCI Issuing Lender under an FCI against presentation of a draft or other document that does not comply with the terms of such FCI, 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, constitute a legal or equitable discharge of, or provide a right of setoff against, such Borrower’s obligations hereunder. Neither the Foreign Trade Facility Agent, the Lenders nor any FCI Issuing Lender, 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 FCI 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 FCI (including any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in the finding of true facts or law or any consequence arising from causes beyond the control of the applicable FCI Issuing Lender; provided that neither of (A) the foregoing sentences shall be construed to excuse such FCI Issuing Lender 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 such Borrower that are caused by such FCI Issuing Lender’s gross negligence, willful misconduct or failure to exercise care (each as determined in a final and non-appealable judgment of a court of competent jurisdiction) when determining whether drafts and other documents presented under an FCI comply with the terms thereof, or if the obligation to honor a request demand for payment under an FCI depends upon non-documentary conditions, whether questions of facts or law at issue in the underlying transaction justify the payment by the FCI Issuing Lender. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, (i) with respect to documents presented which appear appears on their its face to be in substantial compliance with the terms specified in such Foreign Credit Instrument, (B) the demand is not obviously fraudulent or forged or conclusive evidence is shown thereof and (C) in case of an FCIsuretyships (other than upon first demand), an FCI Issuing such Lender maywill take into consideration permissible objections or defenses relating to the underlying commercial contract with the beneficiary to the extent that such Borrower, after having been advised of the receipt of a payment demand, has promptly given written evidence thereof to such Lender, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information order that it can transmit the same to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms beneficiary of such FCI; or (ii) if the obligation to honor a request for payment under an FCI depends upon non-documentary conditions, an FCI Issuing Lender may, in its sole discretion, either accept and make payment upon such facts presented in connection with the request for payment, without responsibility for further investigation, regardless of any notice or information to the contrary; provided, however, that the applicable Borrower does not promptly provide irrefutable evidence that facts presented in connection with the request for payment are not true, or refuse to accept and make payment upon such facts. Without limiting any rights that the applicable FCI Issuing Lender may have under applicable law, (i) the applicable Borrower’s aggregate remedies against the applicable FCI Issuing Lender for wrongfully honoring a presentation or wrongfully retaining honored documents shall in no event exceed the aggregate amount paid by such Borrower to such FCI Issuing Lender with respect to the honored presentation, plus interest at the rate equal to the Adjusted Eurocurrency Rate for Interest Periods of one month, (ii) the applicable FCI Issuing Lender may accept as a draft any written or electronic demand or request for payment under an FCI, even if non-negotiable or not in the form of a draft, and may disregard any requirement that such draft, demand or request bear any or adequate reference to the FCI, and (iii) the applicable FCI Issuing Lender may purchase or discount an accepted draft or deferred payment obligation incurred under an FCI without affecting the amount or timing of the reimbursement due from the applicable BorrowerForeign Credit Instrument. (ii) The relevant Each Borrower shall, upon demand from the relevant FCI Foreign Issuing Lender, reimburse such FCI Issuing Lender for, and irrevocably and unconditionally indemnify such FCI Issuing Lender against any sum paid or payable in accordance with clause (i) above under an FCI a Foreign Credit Instrument issued by such FCI Issuing Lender at the request of such Borrower and against all other liabilities, reasonable costs (including any costs incurred in funding any amount paid by such FCI Issuing Lender under or in connection with such FCIForeign Credit Instrument), claims, losses and expenses which such FCI Issuing Lender may at any time (whether before, on or after the Foreign Trade Maturity Date) reasonably incur or sustain in connection with or arising out of any such FCI. Each such reimbursement shall be made in the currency in which the applicable FCI was issued. Foreign Credit Instrument. (iii) If an FCI a Foreign Issuing Lender shall make has made payment to another Foreign Issuing Lender in accordance with Section 2.6(s), such Lender shall, in addition to any FCI Disbursement, then, unless right assigned to it against the relevant Borrower shall reimburse such FCI Disbursement in full on the date such FCI Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such FCI Disbursement is made to but excluding the date that such Borrower reimburses such FCI Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 1.0%; provided that if such Borrower fails to reimburse such FCI Disbursement within five calendar days (including for any interest incurred in connection with such FCI Disbursement pursuant payment, be entitled to demand from such Borrower to be indemnified against any such payment in accordance with clause (ii) above. (iv) Each Borrower agrees that if (A) it has requested the preceding provisions issuance of this sentencea surety payable upon first demand with respect to an obligation in the underlying contract (governed by German law) which provides for warranty and/or performance obligations to be secured by means of a Foreign Credit Instrument and (B) the classification of such obligation to provide for such surety payable upon first demand as an individual agreement between the relevant counterparties is disputed (clauses (A) and (B) together, the “Invalid First Demand Feature”), then any invalidity of the underlying contract, the instruction to issue such entire unpaid amount Foreign Credit Instrument or of the Foreign Credit Instrument itself resulting from the Invalid First Demand Feature shall bear interestbe disregarded for any purposes under and in connection with this Agreement, in particular in connection with the indemnity provided for each day in this Section 2.6(h), and that it will refrain (x) from taking any steps of any kind which are based on the Invalid First Demand Feature and including which are destined to hinder the sixth calendar day after relevant Foreign Issuing Lender from fulfilling its obligations under and in connection with such Foreign Credit Instrument in compliance with its terms and (y) from disputing any reimbursement claims based on the date Invalid First Demand Feature, unless it provides such FCI Disbursement is made Foreign Issuing Lender with obvious and undisputable documentary evidence for a fraudulent demand under such Foreign Credit Instrument enabling and giving such Lender the right to but excluding the date that refuse to honor such Borrower reimburses such FCI Disbursement, at a fluctuating per annum rate equal to the Alternate Base Rate plus 2.0%demand.