Common use of Borrower Liabilities Clause in Contracts

Borrower Liabilities. (i) If a Foreign Issuing Lender receives a request for payment under any Foreign Credit Instrument (including from an Indirect 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 a Foreign Issuing Lender under a Foreign Credit Instrument (each, a “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 Foreign Credit Instrument, any request for the issuance thereof or this Agreement, or any term or provision therein, or (if any) underlying agreement (ii) any draft or other document presented under 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 Foreign Issuing Lender under a Foreign Credit Instrument against presentation of a draft or other document that does not comply with the terms of such Foreign 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 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 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 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 Foreign Issuing Lender; provided that neither of the foregoing sentences shall be construed to excuse such 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 Foreign Issuing Lender’s gross negligence, willful misconduct or failure to exercise care when determining whether drafts and other documents presented under a Foreign Credit Instrument comply with the terms thereof, or if the obligation to honor a request for payment under 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 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 a Foreign Credit Instrument, 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 Foreign Credit Instrument; or (ii) if the obligation to honor a request for payment under a Foreign Credit Instrument depends upon non-documentary conditions, 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 Foreign Issuing Lender may have under applicable law, (i) the applicable Borrower’s aggregate remedies against the applicable 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 Foreign Issuing Lender with respect to the honored presentation, plus interest at the rate equal to the Adjusted LIBO Rate for Interest Periods of one month, (ii) may accept as a draft any written or electronic demand or request for payment under a 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 Foreign Credit Instrument, and (iii) may purchase or discount an accepted draft or deferred payment obligation incurred under a Foreign Credit Instrument without affecting the amount or timing of the reimbursement due from the applicable Borrower.

Borrower Liabilities. (i) If a Foreign an FCI Issuing Lender receives a request for payment under any Foreign Credit Instrument FCI (including from an Indirect Foreign 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 a Foreign an FCI Issuing Lender under a Foreign Credit Instrument an FCI (each, a an “Foreign Credit 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 Foreign Credit InstrumentFCI, of any request for the issuance thereof or of this Agreement, or of any term or provision thereintherein or herein, or (if any) of any underlying agreement (ii) any draft or other document presented under a Foreign Credit Instrument 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 Foreign FCI Issuing Lender under a Foreign Credit Instrument an FCI against presentation of a draft or other document that does not comply with the terms of such Foreign Credit InstrumentFCI, 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 Foreign 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 Foreign Credit Instrument 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 Foreign Credit Instrument 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 Foreign FCI Issuing Lender; provided that neither of the foregoing sentences shall be construed to excuse such Foreign 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 Foreign 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 a Foreign Credit Instrument an FCI comply with the terms thereof, or if the obligation to honor a request for payment under a Foreign Credit Instrument an FCI depends upon non-documentary conditions, whether questions of facts or law at issue in the underlying transaction justify the payment by the Foreign 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 a Foreign Credit Instrumentan FCI, a Foreign 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 Foreign Credit InstrumentFCI; or (ii) if the obligation to honor a request for payment under a Foreign Credit Instrument an FCI depends upon non-documentary conditions, a Foreign 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 Foreign FCI Issuing Lender may have under applicable law, (i) the applicable Borrower’s aggregate remedies against the applicable Foreign 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 Foreign FCI Issuing Lender with respect to the honored presentation, plus interest at the rate equal to the Adjusted LIBO 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 a Foreign Credit Instrumentan 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 Foreign Credit InstrumentFCI, and (iii) the applicable FCI Issuing Lender may purchase or discount an accepted draft or deferred payment obligation incurred under a Foreign Credit Instrument an FCI without affecting the amount or timing of the reimbursement due from the applicable Borrower.

Borrower Liabilities. (i) If a Foreign an FCI Issuing Lender receives a request for payment under any Foreign Credit Instrument FCI (including from an Indirect Foreign 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 a Foreign an FCI Issuing Lender under a Foreign Credit Instrument an FCI (each, a an “Foreign Credit 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 Foreign Credit InstrumentFCI, of any request for the issuance thereof or of this Agreement, or of any term or provision thereintherein or herein, or (if any) of any underlying agreement (iiB) any draft or other document presented under a Foreign Credit Instrument 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 Foreign FCI Issuing Lender under a Foreign Credit Instrument an FCI against presentation of a draft or other document that does not comply with the terms of such Foreign Credit InstrumentFCI, 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 Foreign 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 Foreign Credit Instrument 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 Foreign Credit Instrument 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 Foreign FCI Issuing Lender; provided that provided, that, neither of the foregoing sentences shall be construed to excuse such Foreign 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 Foreign 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 a Foreign Credit Instrument an FCI comply with the terms thereof, or if the obligation to honor a request for payment under a Foreign Credit Instrument an FCI depends upon non-documentary conditions, whether questions of facts or law at issue in the underlying transaction justify the payment by the Foreign 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 a Foreign Credit Instrumentan FCI, a Foreign 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 Foreign Credit Instrument; FCI, or (ii2) if the obligation to honor a request for payment under a Foreign Credit Instrument an FCI depends upon non-documentary conditions, a Foreign 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 Foreign FCI Issuing Lender may have under applicable law, Law: (iI) the applicable Borrower’s aggregate remedies against the applicable Foreign 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 Foreign FCI Issuing Lender with respect to the honored presentation, plus interest at the rate equal to the Adjusted LIBO 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 a Foreign Credit Instrumentan 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 Foreign Credit Instrument, FCI; and (iiiIII) the applicable FCI Issuing Lender may purchase or discount an accepted draft or deferred payment obligation incurred under a Foreign Credit Instrument an FCI without affecting the amount or timing of the reimbursement due from the applicable Borrower.