Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party. (ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement. (iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Sothebys), Credit Agreement (Sothebys)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, the Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Administrative Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any the Administrative Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any the Administrative Agent or any Lender seeking indemnification or of any L/C Letter of Credit Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such the Administrative Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any the Administrative Agent and any Lender and the Borrowers, the Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any the Administrative Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any the Administrative Agent under any Letter of Credit or guaranty thereof, such the Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any the Administrative Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any the Administrative Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by the Borrowers in favor of any L/C Letter of Credit Issuer in any letter Letter of credit Credit application, reimbursement agreement or similar document, instrument or agreement between or among the Borrowers and such L/C Letter of Credit Issuer, including a the Master Documentary Agreement and the Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Centerplate, Inc.), Credit Agreement (Centerplate, Inc.)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless the Administrative Agent, the Collateral Agent, each Agent L/C Issuer and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that the Administrative Agent, the Collateral Agent, any Agent L/C Issuer or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or the Administrative Agent, the Collateral Agent, any Lender or L/C Issuer seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender indemnified person (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and the Administrative Agent, the Collateral Agent, any Lender and Borrowersany L/C Issuer on the one hand and, Borrowers on the other hand, the Credit Parties, the Credit Parties assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiariesby, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither the Administrative Agent, the Collateral Agent, any Agent Lender nor any Lender L/C Issuer shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; , (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; , (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent L/C Issuer under any Letter of Credit or guaranty thereof, such Agent L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; , (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; , (E) errors in interpretation of technical terms; , (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; , (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; , and (H) any consequences arising from causes beyond the control of the Administrative Agent, the Collateral Agent, any Agent Lender or any LenderL/C Issuer. None of the above shall affect, impair, or prevent the vesting of any of the Administrative Agent’s, the Collateral Agent’s, any AgentLender’s or any LenderL/C Issuer’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 2 contracts
Samples: Revolving Credit Agreement (James River Coal CO), Revolving Credit Agreement (James River Coal CO)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Lower Lakes hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent Agent, L/C Guarantor and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ legal fees and allocated costs of internal counsel) that any Agent Agent, L/C Guarantor or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty guarantee thereof, or (B) the failure of any Agent Agent, L/C Guarantor or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty guarantee thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case case, other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent Agent, L/C Guarantor and any Lender and BorrowersLower Lakes, Borrowers assume Lower Lakes assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent none of Agent, L/C Guarantor nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty guarantee thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty guarantee thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty guarantee thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty guarantee thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty guarantee thereof; and (H) any consequences arising from causes beyond the control of any Agent Agent, L/C Guarantor or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's, L/C Guarantor's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Lower Lakes in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Lower Lakes and such L/C Issuer.
(iv) Notwithstanding anything else to the contrary herein, including if any Lender is a Master Standby Agreement Non-Funding Lender or Master Documentary Agreement entered into Impacted Lender, no L/C Issuer shall be obligated to Issue any Letter of Credit unless (w) the Non-Funding Lender or Impacted Lender has been replaced in accordance with Section 11.21 or 9.1, (x) the Administrative Agent.Letter of Credit Obligations of such Non-Funding Lender or Impacted Lender have been cash collateralized, (y) the Revolving Loan Commitments of the other Lenders have been increased by an amount sufficient to satisfy Agent that all future Letter of Credit Obligations will be covered by all Revolving Lenders that are not Non-Funding Lenders or Impacted Lenders, or (z) the Letter of Credit Obligations of such Non-Funding Lender or Impacted Lender have been reallocated to other Revolving Lenders in a manner consistent with subsection 9.9(d)(ii),
Appears in 2 contracts
Samples: Credit Agreement (Rand Logistics, Inc.), Credit Agreement (Rand Logistics, Inc.)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than except that Borrowers shall have no obligation under this subsection to the extent solely as a result of that any liabilities resulted from the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 2 contracts
Samples: Loan Agreement (Omega Healthcare Investors Inc), Loan Agreement (Assisted Living Concepts Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers the Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each the Administrative Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and reasonable allocated costs of internal counsel) that any the Administrative Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any the Administrative Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such the Administrative Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any the Administrative Agent and any Lender and Borrowersthe Borrower, Borrowers assume the Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit Credit, by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any the Administrative Agent nor any Lender or L/C Issuer shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any the Administrative Agent under any Letter of Credit or guaranty thereof, such the Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any the Administrative Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any the Administrative Agent’s or any Lender’s rights or powers hereunder or under the Agreement. Without limiting the foregoing, in no event shall the Administrative Agent, the Swing Line Lender, any Lender or any L/C Issuer be responsible for any special, indirect or consequential damages.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers the Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers the Borrower and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 2 contracts
Samples: Receivables Funding and Administration Agreement (RBS Global Inc), Receivables Funding and Administration Agreement (Rexnord LLC)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers each Borrower hereby agree agrees to pay and to protect, indemnify, indemnify and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty the incurrence of any L/C Obligation in respect thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof of the Agent to make any payment under any L/C Obligation as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender Lender, on the one hand, and Borrowersany Borrower, Borrowers assume on the other hand, such Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiariesby, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: for (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; , (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; , (C) the failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, provided that in the case of any payment by any Agent under any Letter of Credit or guaranty thereofL/C Obligation, such Agent shall be liable only to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof L/C Obligation complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or any guaranty thereof; , (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, messages by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; , (E) errors in interpretation of technical terms; , (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; L/C Obligation, (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; L/C Obligation and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, impair or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the this Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers any Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers any Borrower and such L/C Issuer, including a Master Standby Agreement the application for standby Letter of Credit, master standby agreement, application for documentary Letter of Credit or Master Documentary Agreement entered into with the Administrative Agentmaster agreement for documentary Letter of Credit.
Appears in 2 contracts
Samples: Credit Agreement (Curative Health Services Inc), Credit Agreement (Curative Health Services Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedPROVIDED that, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties.
(i) In addition to amounts payable as elsewhere provided in this Article 10, the Agreement, Borrowers Borrower hereby agree to pay and agrees to protect, indemnify, pay and save the Operating Lender and its directors, officers, employees, agents and representatives harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ legal fees and allocated costs of internal counselexpenses) that any Agent or any Lender which the indemnitee may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereofCredit, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence breach of the standards of reasonable care specified in the Uniform Customs or willful misconduct of such Agent or such where the Operating Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything would not be entitled to the contrary hereinforegoing indemnification under ISP98, no Foreign Credit Party shall have any obligation hereunder with respect in each case as stated on its face to any indemnification liabilities that are Obligations be applicable to such Letter of any Domestic Credit PartyCredit.
(ii) As between any Agent the Borrower, on the one hand, and any Lender and Borrowersthe Operating Lender, Borrowers assume on the other hand, the Borrower assumes all risks of the acts and omissions of, or misuse of any Letter the Letters of Credit by beneficiariesissued hereunder by, the respective beneficiaries of any Letter such Letters of Credit. In furtherance and not in Credit and, without limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Operating Lender shall not be responsible for: :
(A) the form, validity, sufficiency, accuracy, genuineness invalidity or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency insufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; ;
(C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (EB) errors in interpretation of technical terms; ;
(FC) any loss or delay in the transmission or otherwise of any document required in order to make a payment drawing under any such Letter of Credit or guaranty thereof or of the proceeds thereof; and
(GD) the credit misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under any such Letter of Credit or guaranty thereofCredit; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, impair or prevent the vesting of any of any Agent’s or any the Operating Lender’s ’ rights or powers hereunder hereunder. No action taken or omitted by the Operating Lender under or in connection with any Letter of Credit issued by it or the Agreementrelated certificates, if taken or omitted in good faith, shall put the Operating Lender under any resulting liability to the Borrower (provided that the Operating Lender acts in accordance with the standards of reasonable care specified in the Uniform Customs and otherwise as may be required under ISP98, in each case as stated on its face to be applicable to the respective Letter of Credit).
(iii) Nothing contained herein shall The Borrower agrees that neither the Operating Lender nor its officers, directors, employees or agents will assume liability for, or be deemed to limit responsible for, and the Borrower hereby indemnifies and holds harmless any such Person from any losses or to expand any waiversclaims resulting from, covenants or indemnities the following: (A) the use which may be made by Borrowers in favor of any L/C Issuer Letter of Credit; (B) any acts or omissions of the beneficiary of any Letter of Credit including the application of any payment made to such beneficiary; (C) the form, validity, sufficiency, correctness, genuineness or legal effect of any document or instrument relating to any Letter of Credit which on its face complies with requirements of the Letter of Credit, even if such document or instrument should in fact prove to be in any letter respect invalid, insufficient, inaccurate, fraudulent or forged; (D) the failure of credit applicationany document or instrument to bear any reference or adequate reference to any Letter of Credit; (E) any failure to note the amount of any draft on any Letter of Credit or on any related document or instrument; (F) any failure of the beneficiary of any Letter of Credit to meet the obligations of such beneficiary to the Borrower or any other Person other than the Operating Lender; (G) any errors, reimbursement agreement inaccuracies, omissions, interruptions or delays in transmission or delivery of any messages, directions or correspondence by mail, facsimile or otherwise, whether or not they are in cipher; any inaccuracies in the translation of any messages, directions or correspondence or for errors in the interpretation of any technical terms; (H) any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect; (I) acting in reliance upon any notice, consent, certificate, statement or other writing (which may be a bank wire, telex, facsimile or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into writing) appearing on its face to be in compliance with the terms and conditions of the Letter of Credit; or (J) any failure by the Operating Lender to make payment under any Letter of Credit as a result of any Law, control or restriction rightfully or wrongfully exercised or imposed by any domestic or foreign court or Administrative Agent.Body or as a result of any other cause beyond the control of the Operating Lender or its officers, directors or employees or agents. This Section 10.1(g)(iii) will survive the termination of this Agreement; provided that nothing in this Agreement shall exonerate the Operating Lender for its gross negligence or wilful misconduct (as determined by a final, non-appealable judgment of a court of component jurisdiction).
Appears in 1 contract
Samples: Credit Agreement
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts ------------------------------------------ payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent under any Letter of Credit or ------- guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer the Master L/C Agreement or in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer. ANNEX C (SECTION 1.8) ----------- TO CREDIT AGREEMENT ---------------- CASH MANAGEMENT SYSTEMS ----------------------- Until transfer to Agent of the Blocked Accounts and Collection Account in accordance with (and as defined in) the Intercreditor Agreement (the date of such transfer being referred to herein as the "Transfer Date"), including Borrower and ------------- each other Credit Party shall comply with the requirements of the Cash Management System described in the Receivables Documents. In addition, Borrower and each other Credit Party shall establish and maintain the Cash Management Systems described below (each reference to "Borrower" in this Annex C shall, ------- unless otherwise specified also be deemed to be a Master Standby Agreement reference to each other Credit Party):
(a) On or Master Documentary Agreement before the Transfer Date and until the Termination Date, Borrower shall deposit and cause the Credit Parties to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (other than, prior to the Transfer Date, Purchased Property, as defined on the Intercreditor Agreement) into bank accounts in Borrower's name or any such Subsidiary's name (collectively, the "Borrower Accounts") at banks set ----------------- forth on Disclosure Schedule (3.19) (each, a "Relationship Bank"). -------------------------- -----------------
(b) On or before the Effective Date (or such later date as Agent shall consent to in writing), each Relationship Bank shall have entered into tri-party blocked account agreements with Agent, for the benefit of itself and Lenders, and Borrower and Subsidiaries thereof, as applicable, in form and substance acceptable to Agent, which shall become operative on or prior to the Effective Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof are held by such bank as agent or bailee-in-possession for Agent, on behalf of Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the Effective Date with respect to banks at which a Borrower Account is located, such bank agrees to forward immediately all amounts in each Borrower Account to the Agent Account and to commence the process of daily sweeps from such Borrower Account into the Agent Account. From and after the Effective Date, Borrower shall not, and shall not cause or permit any Subsidiary thereof to, accumulate or maintain cash in disbursement or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements.
(c) So long as no Default or Event of Default has occurred and is continuing, Borrower may amend Disclosure Schedule (3.19) to add or replace a -------------------------- Relationship Bank or Borrower Account or to replace any Concentration Account or any Disbursement Account; provided, however, that (i) Agent shall have consented -------- ------- ---- in writing in advance to the opening of such account with the Administrative relevant bank and (ii) prior to the time of the opening of such account, Borrower and/or the Subsidiaries thereof, as applicable, and such bank shall have executed and delivered to Agent a tri-party blocked account agreement, in form and substance satisfactory to Agent. Borrower shall close any of its accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within thirty (30) days of notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within sixty (60) days of notice from Agent that the operating performance, funds transfer and/or availability procedures or performance with respect to accounts or lockboxes of the bank holding such accounts or Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(d) The Borrower Accounts and the Disbursement Accounts shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which Borrower and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Borrower Security Agreement and the Subsidiaries Security Agreement.
(e) All amounts deposited in the Agent Account shall be deemed received by Agent in accordance with Section 1.10 of the Agreement and shall be applied (and ------------ allocated) by Agent in accordance with Section 1.11 of the Agreement. In no ------------ event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Agent Account.
(f) Borrower may maintain, in its name, an account (each a "Disbursement ------------ Account" and collectively, the "Disbursement Accounts") at a bank acceptable to ------- --------------------- Agent into which Agent shall, from time to time, deposit proceeds of Revolving Credit Advances and Swing Line Advances made to Borrower pursuant to Section 1.1 ----------- for use by Borrower solely in accordance with the provisions of Section 1.4. -----------
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the bad faith, gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its bad faith, gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer. Borrowers shall, including and shall cause their respective Subsidiaries to, establish and maintain the Cash Management Systems described below:
(a) Borrowers may maintain, in their names, one or more accounts (each a Master Standby Agreement "Disbursement Account" and collectively, the "Disbursement Accounts") at a bank reasonably acceptable to Agent into which (i) Agent shall, from time to time, deposit proceeds of Revolving Credit Advances made to Borrowers and (ii) proceeds of any checks, cash or Master Documentary Agreement other items of payment received by any Borrower shall be deposited.
(b) On or before the date of the making of the initial Revolving Credit Advance or the incurrence of the initial Letter of Credit Obligations, each bank where a Disbursement Account is maintained and all other banks identified in Disclosure Schedule 3.19 (each, a "Relationship Bank") shall have entered into tri-party deposit account control agreements with Agent, for the benefit of itself and Lenders, and Borrowers and the applicable Subsidiaries thereof, as applicable, in form and substance reasonably acceptable to Agent, which shall become operative on or prior to the date of the making of the initial Revolving Credit Advance or the incurrence of the initial Letter of Credit Obligations. Each such deposit account control agreement shall provide, among other things, that (i) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment and as may otherwise be agreed to by Agent and (ii) the bank party thereto shall agree to comply with Agent's instructions directing disposition of funds on deposit without further consent of any Borrower or the applicable Subsidiary (as applicable). Agent hereby agrees with each Credit Party that (A) Agent shall not deliver to any bank described above any notice directing disposition of funds on deposit unless and until the occurrence and continuance of an Event of Default and (B) promptly upon the cure or waiver of the Event of Default that gave rise to the notice in the preceding clause (A), so long as no other Event of Default has occurred and is continuing at such time, Agent shall deliver written notice to the applicable bank described above notifying such bank that the funds on deposit shall thereafter be disposed of as directed by the Credit Parties; provided, that in the event the applicable bank refuses to dispose of funds on deposit as directed by the Credit Parties after receipt of such written notice, the Agent agrees to terminate the applicable tri-party deposit account control agreement with such bank so long as prior to such termination such bank has executed and delivered to Agent a replacement tri-party deposit account control agreement, in form and substance described above.
(c) So long as no Event of Default has occurred and is continuing, any Borrower may amend Disclosure Schedule 3.19 to add or replace a Relationship Bank or replace any Disbursement Account; provided, that (i) Agent shall have consented in writing in advance to the opening of such account with the Administrative relevant bank and (ii) prior to the time of the opening of such account, Borrowers or their Subsidiaries, as applicable, and such bank shall have executed and delivered to Agent a tri-party deposit account control agreement, in the form and substance described above. Borrowers or their applicable Subsidiaries shall close any of their accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within 30 days following written notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within 60 days following written notice from Agent that the operating performance, funds transfer or availability procedures or performance with respect to accounts of the bank holding such accounts or Agent's liability under any tri-party deposit account control agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(d) Following the occurrence and during the continuance of an Event of Default, at the request of Agent or Requisite Lenders Borrowers shall (i) establish lock boxes ("Lock Boxes") and/or blocked accounts ("Blocked Accounts") at one or more of the banks set forth in Disclosure Schedule 3.19, and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, (ii) deposit and cause their Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Lock Box) into one or more Blocked Accounts in such Borrower's name or any such Subsidiary's name and at a Relationship Bank and (iii) deliver to each Relationship Bank instructions, revocable only upon Agent's express written authorization, directing each Relationship Bank to immediately forward all amounts on deposit to the Collection Account through daily sweeps from such accounts into the Collection Account.
(e) The Disbursement Accounts, each account maintained with a Relationship Bank and the Lock Boxes and Blocked Accounts (if any) shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which each Borrower and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreement.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiariesby, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer, including an Application and Agreement For Documentary Letter of Credit, a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Uti Worldwide Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers Borrower hereby agree to pay and agrees to protect, indemnify, pay and save harmless each Agent and each Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of cf internal counsel) that any which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A1) the issuance of any Letter of Credit or guaranty thereof, other than as result of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction or (B2) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgment)governmental authority. It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and Borrower and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible forresponsible: (Ai) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (Ciii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its has not acted with gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (Div) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (Ev) for errors in interpretation of technical terms; (Fvi) for any loss Loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (Gvii) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (Hviii) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder hereunder. SCHEDULE D TO CREDIT AGREEMENT DATED AS OF DECEMBER 17, 1993 CASH MANAGEMENT SYSTEMS ----------------------- The Borrower shall, and shall cause its Subsidiaries to, establish and maintain the Cash Management Systems described below:
(a) Commencing on the Closing Date and for so long as the Revolving Credit Loan, any of the Term Loans or under any other Obligations are outstanding, the AgreementBorrower shall deposit and shall cause its Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral into bank accounts in the Borrower's name or such Subsidiary's name (collectively, the "Borrower Accounts") at banks set forth on Schedule 3.22. On or before the Closing Date, the Borrower shall have established a concentration account in the Borrower's name (the "Concentration Account") at LaSalle National Bank, which shall be designated as tie Concentration Account bank on Schedule 3.22, in accordance with a blocked account agreement in form and substance satisfactory to Agent, in its sole discretion.
(iiib) Nothing contained herein shall be deemed to limit On or to expand before the Closing Date, LaSalle National Bark, as Concentration Account bank, and all of the banks set forth Schedule 3.22 with which the Borrower or any waivers, covenants or indemnities made by Borrowers in favor Subsidiary thereof has any relationship other than as the holder of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuera deposit account, including by way of example any mortgage or other lending relationship (each such bank a Master Standby Agreement or Master Documentary Agreement "Relationship Bank"), shall have entered into triparty blocked account agreements with Agent, for the Administrative benefit of itself and Lenders, and the Borrower and/or each such Subsidiary, as applicable, in form and substance acceptable to Agent., which shall become operative on or prior to the Closing Date at LaSalle National Bank, as the bank where the Concentration Account is maintained, and all Relationship Banks at which Borrower Accounts are maintained. Borrower shall clearly designate each bank which is a Relationship Bank as such on Schedule 3.22. Each such blocked account agreement shall provide, among other things, that:
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Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Administrative Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Administrative Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (Ai) the issuance of any Letter of Credit or guaranty thereof, or (Bii) the failure of any Administrative Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Administrative Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything No Agent or Lender shall enter into any compromise or settlement in any action as to which such Person intends to seek indemnification hereunder without the contrary herein, no Foreign prior written consent of the Credit Party from whom indemnification hereunder is sought, which consent shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) not be unreasonably withheld or delayed. As between any Administrative Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Creditbeneficiaries thereof. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Administrative Agent nor any Lender shall be responsible forresponsible: (Ai) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (Ciii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of CreditCredit or Eligible Trade L/C; providedprovided that, that in the case of any payment by any Administrative Agent or the L/C Issuer if it is a Lender under any Letter of Credit or guaranty thereof, Administrative Agent or such Agent L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (Div) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (Ev) for errors in interpretation of technical terms; (Fvi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (Gvii) for the credit of the proceeds of any drawing under any Letter of Credit Credit, Eligible Trade L/C or guaranty thereof; and (Hviii) for any consequences arising from causes beyond the control of any Administrative Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Administrative Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) . Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.. ANNEX C (SECTION 1.8) TO
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Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedPROVIDED, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer, including an Application and Agreement for Documentary Letter of Credit or a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.. ANNEX C (SECTION 1.8) TO CREDIT AGREEMENT ---------------- CASH MANAGEMENT SYSTEM ----------------------
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Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent Agent, the L/C Issuer and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent which Agent, the L/C Issuer or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedPROVIDED that, that in the case of any payment by any Agent or the L/C Issuer under any Letter of Credit or guaranty thereof, such Agent or the L/C Issuer, as the case may be, shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Agent Agent, the L/C Issuer or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
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Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer I ssuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer t ransfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of B-4 Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any an y Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer, including an Application and Agreement for Standby Letter of Credit and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.. B-5
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Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers UK Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counselfees) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any UK Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any the UK L/C Issuer to honor a demand for payment under any UK Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than (x) to the extent solely as a result of the gross negligence or willful misconduct of such Agent Agent, Lender or such Lender UK L/C Issuer (as finally determined by a court of competent jurisdiction jurisdiction) or (y) in a finalconnection with any one action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, non-appealable judgment). It is understood the fees and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have expenses of more than one separate firm of attorneys at any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Partytime for all such indemnified Persons.
(ii) As between any Agent and any Lender and BorrowersUK Borrower, Borrowers assume UK Borrower assumes all risks of the acts and omissions of, or misuse of any UK Letter of Credit by beneficiaries, beneficiaries of any UK Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any UK Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any UK Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any UK Letter of Credit to comply fully with conditions required in order to demand payment under such UK Letter of Credit; provided, that in the case of any payment by any Administrative Agent under any UK Letter of Credit or guaranty thereof, such Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence negligence, bad faith or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such UK Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such UK Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any UK Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any UK Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers UK Borrower in favor of any the UK L/C Issuer in any letter UK Letter of credit Credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers UK Borrower and such the UK L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.. ANNEX E (Section 4.1(a))
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Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than (i) to the extent solely as a result of the gross negligence or willful misconduct of such Agent Agent, L/C Issuer or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder jurisdiction) or (ii) with respect to taxes, levies, imposts, deductions, charges or withholdings imposed by any Governmental Authority, or any liabilities with respect thereto, the indemnification liabilities that are Obligations for which shall be governed solely and exclusively by Section 1.13 of any Domestic Credit Partythe Agreement.
(ii) As between any Agent Agent, L/C Issuer and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, provided that in the case of any payment by any Agent or L/C Issuer under any Letter of Credit or guaranty thereof, such Agent or L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent Agent, L/C Issuer or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's, L/C Issuer's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with Agent. ANNEX C (SECTION 1.8) ----------- TO CREDIT AGREEMENT ---------------- CASH MANAGEMENT SYSTEM ---------------------- Each Borrower shall, and shall cause its domestic Subsidiaries to, establish and maintain the Administrative Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination Date, each Borrower shall (i) establish lock boxes ("Lock Boxes") at one or more of the banks set forth in Disclosure Schedule (3.19) (each, a "Relationship Bank"), which banks shall be reasonably satisfactory to Agent, and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, and (ii) deposit and cause its domestic Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral not otherwise delivered to a Lock Box into the Missouri State Bank accounts listed on Disclosure Schedule (3.19) (collectively, the "MSB Account"); provided, however that no more than $200,000 in the aggregate may be maintained in the MSB Account and, in the event that the balance in MSB Account exceeds $200,000, Borrowers shall promptly (and in any event within one (1) Business Day) transfer funds to the Master Disbursement Account (as defined below) at least in the amount of such excess. On or before the Closing Date, Borrowers shall have established a master depository account in their name (the "Joint Account") at a Relationship Bank into which all items deposited into the Lock Boxes are swept on a daily basis.
(b) Each Borrower may maintain, in its name, an account (each a "Disbursement Account" and collectively, the "Disbursement Accounts") at a Relationship Bank. Agent shall, from time to time, deposit into Industries' Disbursement Account (the "Master Disbursement Account") proceeds of Revolving Credit Advances and Swing Line Advances made to Borrowers pursuant to Section 1.1 for use by Borrowers solely in accordance with the provisions of Section 1.4. Industries may transfer such proceeds from the Master Disbursement Account into the Disbursement Accounts of the other Borrowers from time to time, subject to the limitations set forth herein.
(c) On or before the Closing Date (or such later date as Agent shall consent to in writing), all Relationship Banks shall have entered into blocked account agreements with Agent (for the benefit of itself and Lenders), Deutsche Bank Trust Company Americas (as administrative and collateral agent under the Senior Notes credit facility for the benefit of the lenders thereunder), and the applicable Borrower and domestic Subsidiaries thereof, as applicable, in form and substance reasonably acceptable to Agent, which shall become operative on or prior to the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in the account covered thereby and proceeds thereof deposited therein are held by such Relationship Bank as agent or bailee-in-possession for Agent, on behalf of itself and Lenders, (ii) the Relationship Bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, but only in the case of non-payment thereof by the Borrowers or their domestic Subsidiaries, and (iii) from and after the Closing Date (A) with respect to Relationship Banks at which a Lock Box is maintained, each such Relationship Bank agrees to forward promptly (and in any event within one (1) Business Day) all amounts in each such Lock Box to the Joint Account and commence the process of daily sweeps from the Lock Boxes into the Joint Account and (B) with respect to the Relationship Bank at which the Joint Account is maintained, such Relationship Bank agrees to promptly (and in any event within one (1) Business Day) forward all available funds in the Joint Account to the Collection Account through daily sweeps from such Joint Account into the Collection Account. Each of (i) any Relationship Bank at which a Disbursement Account (including, without limitation, the Master Disbursement Account) is maintained and (ii) the Missouri State Bank with respect to the MSB Account, shall have entered into, or, in the case of the MSB Account, will enter into within 30 days after the Closing Date, a blocked account agreement among such Relationship Bank, Industries and Agent whereby Agent shall have control over the Disbursement Accounts or the MSB Account, as applicable, upon notice to that Relationship Bank so long as any Event of Default has occurred and is continuing. Borrowers may maintain up to $50,000 in the Joint Account to cover returned items and other charges imposed by the Relationship Bank. The Borrowers agree to cause the Relationship Bank at which the Master Disbursement Account is maintained, to promptly (and in any event within one (1) Business Day) forward all amounts received in the Master Disbursement Account to the Collection Account to the extent that amounts on deposit in the Master Disbursement Account exceed $3,000,000 at any time. Other than in respect of the Master Disbursement Account and the Joint Account, no Borrower shall, or shall cause or permit any domestic Subsidiary thereof to, accumulate or maintain cash in its Disbursement Accounts or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements. Notwithstanding the foregoing, Borrowers may maintain the depository accounts identified under the heading "Payroll Accounts" on Disclosure Schedule (3.19) and that certain disbursement account numbered 11-03787 at Bank One, NA, which accounts will not be subject to a blocked account agreement and shall only be used by Borrowers to pay payroll of their employees.
(d) So long as no Event of Default has occurred and is continuing, Borrowers may amend Disclosure Schedule (3.19) to add or replace a Relationship Bank, Lock Box or Joint Account or to replace any Disbursement Account (including the Master Disbursement Account); provided that (i) Agent shall have consented in writing in advance to the opening of such account or Lock Box with the relevant bank and (ii) prior to the time of the opening of such account or Lock Box, the applicable Borrower or its domestic Subsidiaries, as applicable, and such bank shall have executed and delivered to Agent a tri-party blocked account agreement, in form and substance reasonably satisfactory to Agent. Borrowers shall close any of their accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within thirty (30) days following notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within sixty (60) days following notice from Agent that the operating performance, funds transfer or availability procedures or performance with respect to accounts or Lock Boxes of the bank holding such accounts or Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(e) The Lock Boxes, Joint Account and Disbursement Accounts (including the Master Disbursement Account) shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which each Borrower and each domestic Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreement.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (Ai) the issuance of any Letter of Credit or guaranty thereof, or (Bii) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It No Agent or Lender shall enter into any compromise or settlement in any action as to which such Person intends to seek indemnification hereunder without the prior written consent of the Loan Party from whom indemnification hereunder is understood and agreed thatsought, notwithstanding anything to the contrary herein, no Foreign Credit Party which consent shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Partynot be unreasonably withheld or delayed.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Creditbeneficiaries thereof. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent or the L/C Issuer if it is a Lender under any Letter of Credit or guaranty thereof, Agent or such Agent L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer, including a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent. The following additional conditions precedent shall apply:
(a) The Offer Materials shall have been furnished to Agent and shall be in form and substance reasonably satisfactory to Agent.
(b) Subject to Section 5.17, the Tender Offer shall have been, or shall be concurrently, consummated pursuant to the Offer Materials and the Merger Agreement; and no provision of the Tender Offer or the Merger Agreement shall have been amended, supplemented, waived or otherwise modified without the consent of Agent.
(c) The approval of board of directors of Borrower and Xxxxxx’x of the Tender Offer and the Merger shall not have been withdrawn or qualified in a manner adverse to Borrower, Acquirer or Lenders.
(d) Acquirer shall have acquired on or before September 15, 2004 and concurrently with the making of the first Revolving Credit Advance under the Agreement, not fewer than the Minimum Shares.
(e) To the extent required, each Lender shall have received Form FR U-1 or Form FR G-3, as applicable, executed by Borrower.
(f) The consummation of the Transaction shall not (i) violate any applicable law, statute, rule or regulation or (ii) conflict with, or result in a default or event of default under, any organic documents or any material agreement of Borrower or any of their respective Subsidiaries (other than change of control provisions in material agreements representing Indebtedness being paid in full on the date of such change of control) after giving effect to the Transaction.
(g) Xxxxxx’x and its Subsidiaries shall have no outstanding Indebtedness, Liens or preferred equity after giving effect to the Tender Offer other than, the Indebtedness under and Liens in respect of Capital Leases, purchase money Liens or as otherwise permitted under the Agreement.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, European Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent Agent, Fronting Lender and each other Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent each Agent, Fronting Lender or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any European Letter of Credit or guaranty thereof, or (B) the failure of any Agent Agent, Fronting Lender or any other Lender seeking indemnification or of any European L/C Issuer to honor a demand for payment under any European Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent Agent, Fronting Lender or such other Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent Agent, Fronting Lender and any other Lender and European Borrowers, European Borrowers assume all risks of the acts and omissions of, or misuse of any European Letter of Credit by beneficiaries, of any European Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent Agent, Fronting Lender nor any other Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any European Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forgedforged unless such European L/C Issuer, any such Agent or Fronting Lender had reason to know of such forgery or fraudulent document; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any European Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any European Letter of Credit to comply fully with conditions required in order to demand payment under such European Letter of Credit; providedprovided , that in the case of any payment by any Agent Fronting Lender under any European Letter of Credit or guaranty thereof, such Agent Fronting Lender shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment) in determining that the demand for payment under such European Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such European Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors made in good faith in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any European Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any European Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent Fronting Lender or any other Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s Fronting Lender’s or any other Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by European Borrowers in favor of any European L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among European Borrowers and such European L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement an application entered into with the Administrative Agent.Fronting Lender. B-
Appears in 1 contract
Samples: Credit Agreement (Fibermark Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers Borrower hereby agree to pay and agrees to protect, indemnify, pay and save harmless each Agent and each Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A1) the issuance of any Letter of Credit or guaranty thereof, other than as a result of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction or (B2) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgment)governmental authority. It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and Borrower and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible forresponsible: (Ai) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (Ciii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its has not acted with gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (Div) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (Ev) for errors in interpretation of technical terms; (Fvi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (Gvii) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (Hviii) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreementhereunder.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Samples: Loan Agreement (Artra Group Inc)
Indemnification; Nature of Lenders’ Duties. (ia) In addition to amounts payable by the Borrower to Agent and Lenders as elsewhere provided in the this Agreement, Borrowers the Borrower hereby agree agrees to pay and to protect, indemnify, indemnify and save harmless each Agent and each Lender (and the officers, directors, agents and attorneys of Agent and each Lender) from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel' fees) that any which Agent or any Lender (and the officers, directors, agents and attorneys of Agent and each Lender) may incur or be subject to as a consequence, direct or indirect, of (Ai) the issuance of any Letter of Credit or guaranty thereof, thereof or (Bii) the failure of any Agent or any Lender (and the officers, directors, agents and attorneys of Agent and each Lender) seeking indemnification or of any L/C Issuer Issuing Bank to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (or the applicable officers, directors, agents and attorneys of Agent and each Lender) as finally determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Partyjurisdiction.
(iib) As Except as expressly provided below, as between any Agent and any Lender and Borrowersthe Borrower, Borrowers assume the Borrower hereby assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiariesby, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible forresponsible: (Ai) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (Ciii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (Div) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; provided that Agent shall be liable to the extent any such error, omission, interruption or delay occurred solely as a result of its gross negligence or willful misconduct (Eas finally determined by a court of competent jurisdiction); (v) for errors in interpretation of technical terms; provided that Agent shall be liable to the extent any such error occurred solely as a result of its gross negligence or willful misconduct (Fas finally determined by a court of competent jurisdiction); (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; provided that Agent shall be liable to the extent any such loss or delay occurred solely as a result of its gross negligence or willful misconduct (Gas finally determined by a court of competent jurisdiction); (vii) for the credit application of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (Hviii) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreementother Loan Documents.
(iiic) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer Issuing Bank in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative AgentIssuing Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Loehmanns Holdings Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign U.K. Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic U.S. Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Sothebys)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the bad faith, gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its bad faith, gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer. Borrowers shall, including and shall cause their respective Subsidiaries to, establish and maintain the Cash Management Systems described below:
(a) Borrowers may maintain, in their names, one or more accounts (each a Master Standby Agreement “Disbursement Account” and collectively, the “Disbursement Accounts”) at a bank reasonably acceptable to Agent into which (i) Agent shall, from time to time, deposit proceeds of Revolving Credit Advances made to Borrowers and (ii) proceeds of any checks, cash or Master Documentary Agreement other items of payment received by any Borrower shall be deposited.
(b) On or before the Closing Date, each bank where a Disbursement Account is maintained and all other banks identified in Disclosure Schedule 3.19 (each, a “Relationship Bank”) shall have entered into tri-party deposit account control agreements with Agent, for the benefit of itself and Lenders, and Borrowers and the applicable Subsidiaries thereof, as applicable, in form and substance reasonably acceptable to Agent, which shall become operative on or prior to the Closing Date. Each such deposit account control agreement shall provide, among other things, that (i) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment and as may otherwise be agreed to by Agent and (ii) the bank party thereto shall agree to comply with Agent’s instructions directing disposition of funds on deposit without further consent of any Borrower or the applicable Subsidiary (as applicable). Agent hereby agrees with each Credit Party that (A) Agent shall not deliver to any bank described above any notice directing disposition of funds on deposit unless and until the occurrence and continuance of an Event of Default and (B) promptly upon the cure or waiver of the Event of Default that gave rise to the notice in the preceding clause (A), so long as no other Event of Default has occurred and is continuing at such time, Agent shall deliver written notice to the applicable bank described above notifying such bank that the funds on deposit shall thereafter be disposed of as directed by the Credit Parties; provided, that in the event the applicable bank refuses to dispose of funds on deposit as directed by the Credit Parties after receipt of such written notice, the Agent agrees to terminate the applicable tri-party deposit account control agreement with such bank so long as prior to such termination such bank has executed and delivered to Agent a replacement tri-party deposit account control agreement, in form and substance described above.
(c) So long as no Event of Default has occurred and is continuing, any Borrower may amend Disclosure Schedule 3.19 to add or replace a Relationship Bank or replace any Disbursement Account; provided, that (i) Agent shall have consented in writing in advance to the opening of such account with the Administrative relevant bank and (ii) prior to the time of the opening of such account, Borrowers or their Subsidiaries, as applicable, and such bank shall have executed and delivered to Agent a tri-party deposit account control agreement, in the form and substance described above. Borrowers or their applicable Subsidiaries shall close any of their accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within 30 days following written notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent’s reasonable judgment, or as promptly as practicable and in any event within 60 days following written notice from Agent that the operating performance, funds transfer or availability procedures or performance with respect to accounts of the bank holding such accounts or Agent’s liability under any tri-party deposit account control agreement with such bank is no longer acceptable in Agent’s reasonable judgment.
(d) Following the occurrence and during the continuance of an Event of Default, at the request of Agent or Requisite Lenders Borrowers shall (i) establish lock boxes (“Lock Boxes”) and/or blocked accounts (“Blocked Accounts”) at one or more of the banks set forth in Disclosure Schedule 3.19, and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, (ii) deposit and cause their Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Lock Box) into one or more Blocked Accounts in such Borrower’s name or any such Subsidiary’s name and at a Relationship Bank and (iii) deliver to each Relationship Bank instructions, revocable only upon Agent’s express written authorization, directing each Relationship Bank to immediately forward all amounts on deposit to the Collection Account through daily sweeps from such accounts into the Collection Account.
(e) The Disbursement Accounts, each account maintained with a Relationship Bank and the Lock Boxes and Blocked Accounts (if any) shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which each Borrower and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreement.
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Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Sothebys)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any the applicable L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including including, without limitation, an Application and Agreement for Documentary Letter of Credit and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative AgentGE Capital.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Revolving Credit Agent and each Revolving Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Revolving Credit Agent or any Revolving Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent Revolving Credit, Agent, or any Revolving Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of (i) the gross negligence or willful misconduct of such L/C Issuer, Revolving Credit Agent or such Revolving Lender (as finally determined by a court of competent jurisdiction jurisdiction), (ii) any dispute between Lenders, or any dispute between one or more Lenders and the Agent or the Revolving Credit Agent, (iii) legal proceedings between one or more of the Indemnified Persons and one or more of the Credit Parties in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to which the contrary herein, no Foreign applicable Credit Party shall have any obligation hereunder or Credit Parties prevail (based upon the standards of liability set forth herein), and (iv) the L/C Issuer's failure to make lawful payment under a Letter of Credit after the presentation to it of a draft strictly complying with respect the terms and conditions of the Letter of Credit, unless such failure to any indemnification liabilities that are Obligations of any Domestic Credit Partymake lawful payment was compelled by an injunction or otherwise prohibited or impossible.
(ii) As between any Revolving Credit Agent and any Revolving Lender and Borrowers, except as expressly excluded from the indemnifications set forth above, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Revolving Credit Agent nor any Revolving Lender shall be responsible forresponsible, except as expressly excluded from the indemnifications set forth above,: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Revolving Credit Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Revolving Credit Agent or any Revolving Lender. None of the above shall affect, impair, or prevent the vesting of any of any Revolving Credit Agent’s 's or any Revolving Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer. DRAFT ANNEX C (SECTION 1.7) ----------- TO CREDIT AGREEMENT ---------------- CASH MANAGEMENT SYSTEMS ----------------------- Each Borrower shall establish and maintain the Cash Management Systems described below:
(a) Borrowers shall, including subject to paragraph (d) below, (i) establish one or more Blocked Accounts (each, a Master Standby Agreement "Blocked Account") at one of the banks set forth on Disclosure Schedule 3.19, and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to a Blocked Account, and (ii) deposit promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or Master Documentary Agreement entered other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Blocked Account) into the Blocked Account bank (the "Blocked Account Bank").
(b) Revolving Credit Agent shall established a concentration account in its name, on behalf of the Borrowers (the "Concentration Account") at the bank that shall be designated as the concentration account bank ("Concentration Account Bank") for Revolving Credit Agent on Disclosure Schedule 3.19.
(c) The Concentration Account Bank and each Blocked Account Bank, shall enter into a blocked account agreement with Revolving Credit Agent, for the benefit of Lenders, and the applicable Borrowers thereof, in form and substance reasonably acceptable to Revolving Credit Agent, which shall become operative on or prior to the Closing Date. The blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in the Concentration Account are held by such bank as agent or bailee-in-possession for Revolving Credit Agent, on behalf of Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the Closing Date (A) with respect to each bank at which a Blocked Account is located, such bank agrees to forward immediately all collected amounts in each Blocked Account maintained by such Blocked Account Bank to the Concentration Account Bank and to commence the process of daily sweeps from the Blocked Accounts into the Concentration Account. The Borrowers shall not accumulate or maintain cash in any accounts other than Blocked Accounts except for (a) amounts not in excess of $600,000 in the aggregate at any one time in the Borrowers' payroll account(s), from which no amounts may be withdrawn except for the ACH funding of tax and payroll obligations, and (b) amounts not in excess of $15,000 at any one time per Borrower or $100,000 at any one time in the aggregate for all Borrowers, held in petty cash accounts to meet minimum balance and minimal operational xxxxxrements.
(d) So long as no Event of Default has occurred and is continuing, Borrowers may amend Disclosure Schedule 3.19 to replace any Blocked Account Bank or replace or amend any Disbursement Account; provided, however, that prior to the time of the opening of any Blocked Account or Disbursement Account, the applicable Borrower and such bank shall have executed and delivered to Revolving Credit Agent a blocked account agreement, in form and substance reasonably satisfactory to Revolving Credit Agent. Borrowers shall close any of their accounts (and establish replacement accounts in accordance with the Administrative foregoing sentence) promptly and in any event within thirty (30) days of notice from Revolving Credit Agent that the creditworthiness of any bank holding an account is no longer acceptable in Revolving Credit Agent's reasonable judgment, or as promptly as practicable and in any event within sixty (60) days of notice from Revolving Credit Agent that the operating performance, funds transfer and/or availability procedures with respect to the Blocked Accounts of the bank holding such accounts is no longer acceptable in Revolving Credit Agent's reasonable judgment.
(e) The Blocked Account, Disbursement Accounts and the Concentration Account shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which each Borrower shall have granted a Lien to Revolving Credit Agent, on behalf of the Lenders, pursuant to the Deposit Pledge Agreement.
(f) All amounts deposited in the Concentration Account shall be deemed received by Revolving Credit Agent in accordance with Section 1.9 of the Agreement and shall be applied (and allocated) by Revolving Credit Agent in accordance with Section 1.10 of the Agreement. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Concentration Account.
(g) Each Borrower may maintain, in its name, an account (each a "Disbursement Account" and collectively, the "Disbursement Accounts") at a bank reasonably acceptable to Revolving Credit Agent into which Revolving Credit Agent shall, from time to time, deposit proceeds of Revolving Credit Advances made to such Borrower pursuant to Section 1.1 for use by such Borrower solely in accordance with the provisions of Section 1.3.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer. ANNEX C (SECTION 1.8) TO CREDIT AGREEMENT CASH MANAGEMENT SYSTEMS Borrower shall, including and shall cause its Subsidiaries to, establish and maintain the Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination Date, Borrower and each of its Subsidiaries shall (i) establish lock boxes ("Lock Boxes") at one or more of the banks set forth on DISCLOSURE SCHEDULE (3.19), and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, and (ii) deposit and cause its Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Master Standby Agreement Lock Box) into bank accounts in Borrower's name or Master Documentary Agreement any such Subsidiary's name (collectively, the "Borrower Accounts") at banks set forth on DISCLOSURE SCHEDULE (3.19) (each, a "Relationship Bank"). On or before the Closing Date, Borrower shall have established a concentration account in its name (the "Concentration Account") at the bank which shall be designated as the Concentration Account bank for Borrower on Part A of DISCLOSURE SCHEDULE (3.19) (the "Concentration Account Bank") which bank shall be satisfactory to Agent.
(b) On or before the Closing Date, the Concentration Account Bank, each bank where a Disbursement Account is located and all other Relationship Banks, shall have entered into tri-party blocked account agreements with Agent, for the benefit of itself and Lenders, and Borrower and Subsidiaries thereof, as applicable, in form and substance acceptable to Agent, which shall become operative on or prior to the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in the Concentration Account are held by such bank as agent or bailee-in-possession for Agent, on behalf of Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, for any required adjustment due to clerical or calculation errors relating to such account and, in accordance therewith, any court order, notice of garnishment or other applicable law binding upon such bank, and (iii) from and after the Closing Date (A) with respect to banks at which a Borrower Account is located, such bank agrees to forward immediately all amounts in each Borrower Account to the Concentration Account Bank and to commence the process of daily sweeps from such Borrower Account into the Concentration Account and (B) with respect to the Concentration Account Bank, such bank agrees to immediately forward all amounts received in the Concentration Account to the Collection Account through daily sweeps from such Concentration Account into the Collection Account. Borrower shall not, and shall not cause or permit any Subsidiary thereof to, accumulate or maintain cash in disbursement or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements.
(c) So long as no Default or Event of Default has occurred and is continuing, Borrower may amend DISCLOSURE SCHEDULE (3.19) to add or replace a Relationship Bank, Lock Box or Borrower Account or to replace any Concentration Account or any Disbursement Account; provided, however, that (i) Agent shall have consented in writing in advance to the opening of such account or Lock Box with the Administrative relevant bank and (ii) prior to the time of the opening of such account or Lock Box, Borrower and/or the Subsidiaries thereof, as applicable, and such bank shall have executed and delivered to Agent a tri-party blocked account agreement, in form and substance satisfactory to Agent. Borrower shall close any of its accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within thirty (30) days of notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within sixty (60) days of notice from Agent that the operating performance, funds transfer and/or availability procedures or performance with respect to accounts or lockboxes of the bank holding such accounts or Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(d) The Lock Boxes, Borrower Accounts, Disbursement Accounts and the Concentration Account shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which Borrower and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreements.
(e) All amounts deposited in the Collection Account shall be deemed received by Agent in accordance with SECTION 1.10 of the Agreement and shall be applied (and allocated) by Agent in accordance with SECTION 1.11 of the Agreement. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
(f) Borrower may maintain, in its name, an account (each a "Disbursement Account" and collectively, the "Disbursement Accounts") at a bank acceptable to Agent into which Agent shall, from time to time, deposit proceeds of Revolving Credit Advances and Swing Line Advances made to Borrower pursuant to SECTION 1.1 for use by Borrower solely in accordance with the provisions of SECTION
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers each Account Party hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including the reasonable attorneys’ fees and allocated costs expenses of internal all of its counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any the L/C Issuer, Agent and any Lender Lender, on the one hand, and Borrowerseach Account Party, Borrowers assume on the other hand, such Account Party assumes all risks of the acts and omissions ofof any beneficiary, or misuse of any Letter of Credit by beneficiariesany beneficiary, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, provided that in the case of any payment by any the L/C Issuer or Agent under any Letter of Credit or guaranty thereof, such Agent the L/C Issuer or Agent, as applicable, shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; thereof and (H) any consequences arising from causes beyond the control of any the L/C Issuer, Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any the L/C Issuer's, Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers any Account Party in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers such Account Party and such L/C Issuer, including a any application and the Master Standby Agreement or Master Documentary Agreement entered into with the Administrative AgentAgreement.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Mirant Corp)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than (i) to the extent solely as a result of the gross negligence or willful misconduct of such Agent Agent, L/C Issuer or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder jurisdiction) or (ii) with respect to taxes, levies, imposts, deductions, charges or withholdings imposed by any Governmental Authority, or any liabilities with respect thereto, the indemnification liabilities that are Obligations for which shall be governed solely and exclusively by Section 1.13 of any Domestic Credit Partythe Agreement.
(ii) As between any Agent Agent, L/C Issuer and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, provided that in the case of any payment by any Agent or L/C Issuer under any Letter of Credit or guaranty thereof, such Agent or L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent Agent, L/C Issuer or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's, L/C Issuer's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to ------------------------------------------ amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent under any Letter of Credit or -------- guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer. ANNEX C (SECTION 1.8) ----------- TO CREDIT AGREEMENT ---------------- CASH MANAGEMENT SYSTEMS ----------------------- Borrower and each other Credit Party shall establish and maintain the Cash Management Systems described below (each reference to "Borrower" in this Annex C shall, including unless otherwise specified also be deemed to be a Master Standby Agreement reference to ------- each other Credit Party):
(a) On or Master Documentary Agreement before the Closing Date and until the Termination Date, Borrower shall deposit and cause the Credit Parties to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral into bank accounts in Borrower's name or any such Subsidiary's name (collectively, the "Borrower Accounts") at banks set forth on Disclosure ----------------- ---------- Schedule (3.19) (each, a "Relationship Bank"). --------------- -----------------
(b) On or before the Closing Date (or such later date as Agent shall consent to in writing), each Relationship Bank shall have entered into tri-party blocked account agreements with Agent, for the benefit of itself and Lenders, and Borrower and Subsidiaries thereof, as applicable, in form and substance acceptable to Agent, which shall become operative on or prior to the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof are held by such bank as agent or bailee-in-possession for Agent, on behalf of Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the Closing Date with respect to banks at which a Borrower Account is located, such bank agrees, from and after the receipt of a notice (an "Activation Notice") from Agent (which Activation Notice ----------------- may be given by Agent at any time at which (A) a Default or Event of Default shall have occurred and be continuing, (B) Agent reasonably believes based upon information available to it that a Default or an Event of Default is likely to occur; (C) Agent reasonably believes that an event or circumstance which is likely to have a Material Adverse Effect has occurred, or (D) Agent reasonably has grounds to question the integrity of Borrower's Cash Management Systems or Borrower's compliance with the Administrative provisions of this Annex C or any other ------- provisions of the Loan Documents to the extent related to such Cash Management Systems (any of the foregoing being referred to herein as an "Activation ---------- Event")), to forward immediately all amounts in each Borrower Account to the ----- Collection Account and to commence the process of daily sweeps from such Borrower Account into the Collection Account. From and after the date Agent has delivered an Activation Notice to any bank with respect to any Borrower Account(s), Borrower shall not, and shall not cause or permit any Subsidiary thereof to, accumulate or maintain cash in disbursement or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements.
(c) So long as no Default or Event of Default has occurred and is continuing, Borrower may amend Disclosure Schedule (3.19) to add or replace a -------------------------- Relationship Bank or Borrower Account or to replace any Concentration Account or any Disbursement Account; provided, however, that (i) Agent shall have consented -------- ------- ---- in writing in advance to the opening of such account with the relevant bank and (ii) prior to the time of the opening of such account, Borrower and/or the Subsidiaries thereof, as applicable, and such bank shall have executed and delivered to Agent a tri-party blocked account agreement, in form and substance satisfactory to Agent. Borrower shall close any of its accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within thirty (30) days of notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within sixty (60) days of notice from Agent that the operating performance, funds transfer and/or availability procedures or performance with respect to accounts or lockboxes of the bank holding such accounts or Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(d) The Borrower Accounts and the Disbursement Accounts shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which Borrower and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Borrower Security Agreement and the Subsidiaries Security Agreement.
(e) All amounts deposited in the Collection Account shall be deemed received by Agent in accordance with Section 1.10 of the Agreement and shall be ------------ applied (and allocated) by Agent in accordance with Section 1.11 of the ------------ Agreement. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
(f) Borrower may maintain, in its name, an account (each a "Disbursement Account" and collectively, the "Disbursement Accounts") at a bank --------------------- --------------------- acceptable to Agent into which Agent shall, from time to time, deposit proceeds of Revolving Credit Advances and Swing Line Advances made to Borrower pursuant to Section 1.1 for use by Borrower solely in accordance with the provisions of ----------- Section 1.4. -----------
(g) Borrower shall (i) hold in trust for Agent, for the benefit of itself and Lenders, all checks, cash and other items of payment received by Borrower, and (ii) within one (1) Business Day after receipt by Borrower of any checks, cash or other items or payment, deposit the same into a Borrower Account. All proceeds of the sale or other disposition of any Collateral shall be deposited directly into Borrower Accounts. ANNEX G (SECTION 6.10) ------------ TO CREDIT AGREEMENT ---------------- FINANCIAL COVENANTS ------------------- Borrower shall not breach or fail to comply with any of the following financial covenants, each of which shall be calculated in accordance with GAAP consistently applied:
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers each of US Borrower and European Borrower, as applicable, hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereofthereof on its behalf, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit issued on its behalf or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers any Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers such Borrower and such L/C Issuer, including a the US Master Standby Agreement or and European Master Documentary Standby Agreement entered into with the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Inverness Medical Innovations Inc)
Indemnification; Nature of Lenders’ Duties. (i) a. In addition to amounts payable as elsewhere provided in the Agreementtheir other obligations under this Article III, Borrowers hereby agree to pay and to protect, indemnify, pay and save Issuing Bank harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel' fees) that any Agent or any Lender Issuing Bank may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer Issuing Bank to honor a demand for payment drawing under any a Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental AuthorityAuthority (all such acts or omissions, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgmentherein called "Government Acts"). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, b. Borrowers shall assume all risks of the acts and acts, omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Creditthe beneficiary thereof. In furtherance and Issuing Bank shall not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible forresponsible: (Ai) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued submitted by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (Ciii) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (Eiv) errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment drawing under any a Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (Hv) for any consequences arising from causes beyond the control of Issuing Bank, including, without limitation, any Agent or any LenderGovernment Acts. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s Issuing Bank's rights or powers hereunder hereunder.
c. In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by Issuing Bank, under or in connection with any Letter of Credit or the related certificates, if taken or omitted in good faith, shall not put Issuing Bank under any resulting liability to Borrowers. It is the intention of the parties that this Credit Agreement shall be construed and applied to protect and indemnify Issuing Bank against any and all risks involved in the issuance of the Letters of Credit, all of which risks are hereby assumed by Borrowers, including, without limitation, any and all Government Acts. Issuing Bank shall not, in any way, be liable for any failure by Issuing Bank or anyone else to pay any drawing under any Letter of Credit as a result of any Government Acts or any other cause beyond the control of Issuing Bank.
d. Nothing in this Section 3.8 is intended to limit the reimbursement obligations of Borrowers contained in Section 3.4 above. The obligations of Borrowers under this Section 3.8 shall survive the termination of this Credit Agreement. No act or omission of any current or prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of Issuing Bank to enforce any right, power or benefit under this Credit Agreement.
(iii) Nothing e. Notwithstanding anything to the contrary contained herein in this Section 3.8, Borrowers shall be deemed have no obligation to limit or to expand any waivers, covenants or indemnities made by Borrowers indemnify Issuing Bank in favor respect of any L/C Issuer liability incurred by Issuing Bank (i) arising solely out of the gross negligence or willful misconduct of Issuing Bank, as determined in an final unappealable judgment by a court of competent jurisdiction, or (ii) caused by Issuing Bank failure to pay under any letter Letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including Credit after presentation to it of a Master Standby Agreement or Master Documentary Agreement entered into request strictly complying with the Administrative Agentterms and conditions of such Letter of Credit, as determined by a court of competent jurisdiction, unless such payment is prohibited by any law, regulation, court order or decree.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless Administrative Agent, each Agent Revolving Lender and each Lender L/C Issuer from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counselfees) that which Administrative Agent, any Agent Revolving Lender or any Lender L/C Issuer may incur or be subject to as a consequence, direct or indirect, of (Ai) the issuance of any Letter of Credit or guaranty or other support thereof, or (Bii) the failure of Administrative Agent, any Agent or any Revolving Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty or other support thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of Administrative Agent, such Agent Revolving Lender or such Lender L/C Issuer (as finally determined by a court of competent jurisdiction in a finaljurisdiction), non-appealable judgment)as applicable. It is understood and agreed that, notwithstanding anything The obligations of Borrower under this Section 2.2(g) shall be deemed to constitute Guaranteed Indebtedness of the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) other Loan Parties under Section 13.1. As between Administrative Agent, any Agent Revolving Lender, any L/C Issuer and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit; provided that the benefits of this sentence shall not accrue in favor of any such Person found to have acted in a grossly negligent manner or to have engaged in willful misconduct (as finally determined by a court of competent jurisdiction). In furtherance and not in limitation of the foregoing, to the fullest extent permitted by lawlaw none of Administrative Agent, neither any Agent nor any Revolving Lender or L/C Issuer shall be responsible forresponsible: (Ai) absent such Person’s gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (Ciii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, provided that in the case of any payment by any Administrative Agent or the L/C Issuer under any Letter of Credit or guaranty or other support thereof, Administrative Agent or such Agent L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty or other support thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty or other support thereof; (Div) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (Ev) for errors in interpretation of technical terms; (Fvi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty or other support thereof or of the proceeds thereof; (Gvii) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty or other support thereof; and (Hviii) for any consequences arising from causes beyond the control of Administrative Agent, any Agent Revolving Lender or any LenderL/C Issuer. None of the above shall affect, impair, or prevent the vesting of any of Administrative Agent’s, any AgentRevolving Lender’s or any LenderL/C Issuer’s rights or powers hereunder or under the this Agreement.
(iii) . Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit applicationL/C Application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, and all reasonable out-of-pocket costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counselfees) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement; provided, however, that the foregoing clauses (A) through (H) shall not be construed to excuse the L/C Issuer for liability to Borrowers to the extent of any damages suffered by the Borrowers that are caused by the L/C Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof; provided, further, the parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the L/C Issuer (as finally determined by a court of competent jurisdiction), the L/C Issuer shall be deemed to have exercised care in each such determination.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Milacron Inc)
Indemnification; Nature of Lenders’ Duties. (ia) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers each Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than (i) to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a finaljurisdiction), non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder (ii) with respect to any taxes (and amounts relating thereto), the indemnification liabilities that are Obligations of any Domestic Credit Partyfor which shall be governed solely and exclusively by Section 2.22.
(iib) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent or L/C Issuer under any Letter of Credit or guaranty thereof, such Agent or L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iiic) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers any Borrower and such L/C Issuer, including an Application and Agreement for Documentary Letter of Credit or a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and (other than allocated costs of internal counsel) that any actually incurred) which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer. CASH MANAGEMENT SYSTEMS Each Credit Party shall, including and shall cause its Subsidiaries to, establish and maintain the Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination Date, the Credit Parties shall establish lock boxes ("Lock Boxes") at one or more of the banks set forth on Disclosure Schedule (3.19), and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, and deposit and cause their respective Subsidiaries (other than non-Credit Parties) to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Master Standby Agreement Lock Box), provided however that deposits for payments in amounts up to but not exceeding $100,000 must be made no later than three (3) business days after the receipt thereof, into bank accounts in one or Master Documentary Agreement more Credit Parties' names or any such Subsidiary's name (other than any trust, refund, foreign, employee, client fiduciary or other similar accounts which are in such Credit Party or such Subsidiary's name, but benefit a third party which is not a Credit Party) (collectively, the "Borrower Accounts") at banks set forth on Disclosure Schedule (3.19) (each, a "Relationship Bank"). On or before the Closing Date, Borrower shall have established a concentration account in its name (the "Concentration Account") at the bank which shall be designated as the Concentration Account bank for Credit Parties on Disclosure Schedule (3.19) (the "Concentration Account Bank") which bank shall be satisfactory to Agent.
(b) On or before the Closing Date, the Concentration Account Bank, each bank where a Disbursement Account is located and all other Relationship Banks, shall have entered into tri-party blocked account agreements with Agent, for the benefit of itself and Lenders, and Credit Parties and Subsidiaries (other than non-Credit Parties) thereof, as applicable, in form and substance acceptable to Agent, which shall become operative upon the occurrence and during the continuance of a Default or Event of Default. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in the Borrower Accounts, the Disbursement Accounts and the Concentration Account are held by such bank as agent or bailee-in-possession for Agent, on behalf of Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the occurrence and during the continuance of a Default or Event of Default with respect to banks at which a Borrower Account is located, such bank agrees to forward immediately all amounts in each Borrower Account to the Concentration Account Bank and to commence the process of daily sweeps from such Borrower Account into the Concentration Account. Credit Parties shall not, and shall not cause or permit any Subsidiary (other than non-Credit Parties) thereof to, accumulate or maintain any of their cash in disbursement or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements.
(c) So long as no Default or Event of Default has occurred and is continuing, Borrower may amend Disclosure Schedule (3.19) to add or replace a Relationship Bank, Lock Box or Borrower Account or to replace any Concentration Account or any Disbursement Account; provided, however, that (i) Agent shall have consented in writing in advance to the opening of such account or Lock Box with the Administrative relevant bank and (ii) prior to the time of the opening of such account or Lock Box, the relevant Credit Party and/or the Subsidiaries thereof, as applicable, and such bank shall have executed and delivered to Agent a tri-party blocked account agreement, in form and substance satisfactory to Agent. Credit Parties shall close any of their accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within thirty (30) days of notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within sixty (60) days of notice from Agent that the operating performance, funds transfer and/or availability procedures or performance with respect to accounts or lockboxes of the bank holding such accounts or Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(d) The Lock Boxes, Borrower Accounts, Disbursement Accounts and the Concentration Account shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Revolving Loans and all other Obligations, and in which each Credit Party and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreement.
(e) All amounts deposited in the Collection Account shall be deemed received by Agent in accordance with Section 1.10 of the Agreement and shall be applied (and allocated) by Agent in accordance with Section 1.11 of the Agreement. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers the Borrower hereby agree agrees to pay and to protect, indemnify, indemnify and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty the incurrence of any L/C Obligation in respect thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof of the Agent to make any payment under any L/C Obligation as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender Lender, on the one hand, and Borrowersthe Borrower, Borrowers assume on the other hand, the Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiariesby, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: for (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; , (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; , (C) the failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, provided that in the case of any payment by any Agent under any Letter of Credit or guaranty thereofL/C Obligation, such Agent shall be liable only to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof L/C Obligation complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or any guaranty thereof; , (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, messages by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; , (E) errors in interpretation of technical terms; , (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; L/C Obligation, (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; L/C Obligation and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, impair or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the this Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers the Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers the Borrower and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any the L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any the L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such the L/C Issuer, including an Application and Agreement for Documentary Letter of Credit and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.L/C Issuer. ANNEX C (Section 2.1(a))
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign U.K. Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic U.S. Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Sothebys)
Indemnification; Nature of Lenders’ Duties. (i) In addition to ------------------------------------------ amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiariesbeneficiaries of, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the -------- case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C IssuerIssuer FINANCIAL STATEMENTS AND PROJECTIONS -- REPORTING ------------------------------------------------- Borrowers shall deliver or cause to be delivered to Agent or to Agent and Lenders, including a Master Standby Agreement or Master Documentary Agreement entered into with as indicated, the Administrative Agent.following:
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or CREDIT AGREEMENT assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Agreement for Documentary Letter of Credit or a Master Agreement for Standby Agreement or Master Documentary Agreement entered into with Agent. CREDIT AGREEMENT ANNEX C (SECTION 1.8) TO CREDIT AGREEMENT CASH MANAGEMENT SYSTEM Each Credit Party shall, and shall cause its Subsidiaries to, establish and maintain the Administrative Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination Date, each Borrower and Subsidiary Guarantor shall (i) establish and maintain one or more blocked accounts in such Borrower's name or any such Subsidiary's name ("Blocked Accounts") identified in DISCLOSURE SCHEDULE (3.19) at the banks corresponding thereto (each, a "Relationship Bank") and (ii) deposit and cause its Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Lock Box as provided in PARAGRAPH (j) below) into the Blocked Accounts.
(b) Agent shall, from time to time with respect to Borrowers, deposit into the Blocked Accounts proceeds of Revolving Credit Advances and Swing Line Advances made to Borrowers pursuant to SECTION 1.1 for use by such Borrower solely in accordance with the provisions of SECTION 1.4; provided, that following Agent's delivery of an Activation Note (as defined below), each Borrower shall maintain, in its name, an account (each a "Disbursement Account" and collectively, the "Disbursement Accounts") at a bank reasonably acceptable to Agent into which Agent shall, from time to time with respect to Borrowers, deposit proceeds of Revolving Credit Advances and Swing Line Advances made to Borrowers pursuant to SECTION 1.1 for use by such Borrower solely in accordance with the provisions of SECTION 1.4.
(c) On or before the Closing Date each Relationship Bank shall have entered into tri-party blocked account agreements with Agent, for the benefit of itself and Lenders, and the applicable Credit Party, in form and substance reasonably acceptable to Agent, which shall become operative on or prior to the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in the applicable deposit account are held by such bank as agent or bailee-in-possession for Agent, on behalf of itself and Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the receipt of notice (an "Activation Notice") from Agent (which Activation Notice may be given by Agent at any time at which a Dominion Activation Event has occurred), to forward immediately all amounts in each Blocked Account to the Collection Account through daily sweeps from such Blocked Account into the Collection Account.
(d) So long as no Default or Event of Default has occurred and is continuing, Borrowers may amend DISCLOSURE SCHEDULE (3.19) to add or replace a Relationship Bank, Lock CREDIT AGREEMENT Box (if any) or Blocked Account, or to replace any Disbursement Account (if any); provided, that (i) Agent shall have consented in writing in advance to the opening of such account or Lock Box with the relevant bank and (ii) prior to the time of the opening of such account or Lock Box, the applicable Borrower or its Subsidiaries, as applicable, and such bank shall have executed and delivered to Agent a tri-party blocked account agreement, in form and substance reasonably satisfactory to Agent. Borrowers shall close any of their accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within 30 days following notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within 60 days following notice from Agent that the operating performance, funds transfer or availability procedures or performance with respect to accounts or Lock Boxes of the bank holding such accounts or Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(e) The Lock Boxes (if any), Blocked Accounts and Disbursement Accounts (if any) shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which each Borrower and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreement.
(f) All amounts deposited in the Collection Account shall be deemed received by Agent in accordance with SECTION 1.10 and shall be applied (and allocated) by Agent in accordance with SECTION 1.11. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
(g) Each Borrower and each Subsidiary Guarantor shall and shall cause its Affiliates, officers, employees, agents, directors or other Persons acting for or in concert with such Borrower (each a "Related Person") to (i) hold in trust for Agent, for the benefit of itself and Lenders, all checks, cash and other items of payment received by such Borrower or any such Related Person, and (ii) within one Business Day after receipt by such Borrower or any such Related Person of any checks, cash or other items of payment, deposit the same into a Blocked Account of such Borrower . Each Borrower on behalf of itself and each Related Person thereof acknowledges and agrees that all cash, checks or other items of payment constituting proceeds of Collateral are part of the Collateral. All proceeds of the sale or other disposition of any Collateral, shall be deposited directly into the applicable Blocked Accounts.
Appears in 1 contract
Samples: Credit Agreement (Ddi Corp)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each L/C Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any L/C Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any L/C Lender seeking indemnification or of any the L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such L/C Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding Notwithstanding anything in this clause (g)(i) to the contrary hereincontrary, no Foreign Credit Party Borrower shall have no obligation to indemnify Agent or any obligation hereunder L/C Lender with respect to any indemnification liabilities that are Obligations claims, demands, liabilities, damages, losses, costs, charges and expenses by Borrower against Agent or such L/C Lender based upon Agent’s or such L/C Lender’s breach of any Domestic Credit Party.its obligations under this Annex B.
(ii) As between any Agent and any L/C Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any L/C Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any L/C Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any L/C Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any the L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such the L/C Issuer, including a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.L/C Issuer. ANNEX C (Section 1.8)
Appears in 1 contract
Samples: Credit Agreement (Comverge, Inc.)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than (i) to the extent solely as a result of the gross negligence or willful misconduct of such Agent Agent, L/C Issuer or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder jurisdiction) or (ii) with respect to taxes, levies, imposts, deductions, charges or withholdings imposed by any Governmental Authority, or any liabilities with respect thereto, the indemnification liabilities that are Obligations for which shall be governed solely and exclusively by Section 1.13 of any Domestic Credit Partythis Agreement.
(ii) As between any Agent Agent, L/C Issuer and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, provided that in the case of any payment by any Agent or L/C Issuer under any Letter of Credit or guaranty thereof, such Agent or L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent Agent, L/C Issuer or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s, L/C Issuer’s or any Lender’s rights or powers hereunder or under the this Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.. ANNEX D (Section 2.1(a))
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in its other obligations under this Section 2.4, the Agreement, Borrowers Borrower hereby agree to pay and agrees to protect, indemnify, pay and save the Lender harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counselfees) that any Agent or any the Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any the Lender seeking indemnification or of any L/C Issuer to honor a demand for payment drawing under any a Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present Governmental Authority (all such acts or future de jure or de facto government or Governmental Authorityomissions, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgmentherein called “Government Acts”). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent the Borrower and any Lender and Borrowersthe Lender, Borrowers the Borrower shall assume all risks of the acts and acts, omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Creditthe beneficiary thereof. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any The Lender shall not be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued submitted by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (ED) errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment drawing under any a Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (HE) for any consequences arising from causes beyond the control of the Lender, including any Agent or any LenderGovernment Acts. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any the Lender’s rights or powers hereunder hereunder. In furtherance and extension and not in limitation of the specific provisions set forth in this subsection (c), any action taken or omitted by the Lender, under or in connection with any Letter of Credit or the Agreement.
(iii) Nothing contained herein related certificates, if taken or omitted in good faith, shall not put the Lender under any resulting liability to the Borrower or any other Credit Party. It is the intention of the parties that this Agreement shall be deemed construed and applied to protect and indemnify the Lender against any and all risks involved in the issuance of the Letters of Credit, all of which risks are hereby assumed by the Borrower, including any and all Government Acts. The Lender shall not, in any way, be liable for any failure by the Lender or anyone else to pay any drawing under any Letter of Credit as a result of any Government Acts or any other cause beyond the control of the Lender. Nothing in this subsection (c) is intended to limit the reimbursement obligations of the Borrower contained in subsection (a) above. The obligations of the Borrower under this subsection (c) shall survive the termination of this Agreement. No act or to expand any waivers, covenants or indemnities made by Borrowers in favor omissions of any L/C Issuer current or prior beneficiary of a Letter of Credit shall in any letter way affect or impair the rights of credit applicationthe Lender to enforce any right, reimbursement agreement power or similar documentbenefit under this Agreement. Notwithstanding anything to the contrary contained in this subsection (e), instrument the Borrower shall have no obligation to indemnify the Lender in respect of any liability incurred by the Lender (A) arising out of the gross negligence or agreement between willful misconduct of the Lender, as determined by a court of competent jurisdiction, or among Borrowers and such L/C Issuer, including (B) caused by the Lender’s failure to pay under any Letter of Credit after presentation to it of a Master Standby Agreement or Master Documentary Agreement entered into request strictly complying with the Administrative Agentterms and conditions of such Letter of Credit, as determined by a court of competent jurisdiction, unless such payment is prohibited by any law, regulation, court order or decree.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Partyjurisdiction.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgment) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer, including an Application and Agreement For Documentary Letter of Credit, a Master Documentary Agreement and a Master Standby Agreement or entered into with Agent; provided, that, to the extent of a conflict between the terms of this Annex B and any Application and Agreement for Documentary Letter of Credit, Master Documentary Agreement or Master Standby Agreement, the terms of this Annex B shall control. ANNEX C (Section 1.8) to AMENDED AND RESTATED CREDIT AGREEMENT CASH MANAGEMENT SYSTEMS Borrower shall, and shall cause its Subsidiaries to, establish and maintain the Cash Management Systems described below:
(a) Borrower may maintain, in its name, one or more accounts (each a "Disbursement Account" and collectively, the "Disbursement Accounts") at a bank reasonably acceptable to Agent into which Agent shall, from time to time, deposit proceeds of Revolving Credit Advances and Swing Line Advances made to Borrower pursuant to Section 1.1 for use by Borrower solely in accordance with the provisions of Section 1.4.
(b) On or before the Restatement Closing Date, each bank where a Disbursement Account is maintained and all other banks identified in Delivery Item 3.19 attached to the Delivery Items Certificate (each, a "Relationship Bank") shall have entered into tri-party deposit account control agreements with Agent, for the benefit of itself and Lenders, and Borrower and the applicable Subsidiaries thereof, as applicable, in form and substance reasonably acceptable to Agent, which shall become operative on or prior to the Restatement Closing Date. Each such deposit account control agreement shall provide, among other things, that (i) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment and as may otherwise be agreed to by Agent and (ii) the bank party thereto shall agree to comply with Agent's instructions directing disposition of funds on deposit without further consent of Borrower or the applicable Subsidiary (as applicable). Agent hereby agrees with Borrower that Agent shall not deliver to any bank described above any notice directing disposition of funds on deposit (herein an "Activation Notice") unless and until the occurrence and continuance of an Event of Default. From and after the date Agent has delivered an Activation Notice to any bank, Borrower shall not, nor shall Borrower cause or permit any Subsidiary thereof to, accumulate or maintain cash in Disbursement Accounts or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date, amounts necessary to meet minimum balance requirements and additional amounts not to exceed $10,000 in any such account and $50,000 in all such accounts in the aggregate at any time outstanding.
(c) So long as no Event of Default has occurred and is continuing, Borrower may amend Delivery Item 3.19 attached to the Delivery Items Certificate to add or replace a Relationship Bank or replace any Disbursement Account; provided, that (i) Agent shall have consented in writing in advance to the opening of such account with the Administrative relevant bank and (ii) prior to the time of the opening of such account, Borrower or its Subsidiaries, as applicable, and such bank shall have executed and delivered to Agent a tri-party deposit account control agreement, in form and substance described above. Borrower shall close any of its accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within 30 days following notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within 60 days following notice from Agent that the operating performance, funds transfer or availability procedures or performance with respect to accounts of the bank holding such accounts or Agent's liability under any tri-party deposit account control agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(d) Following the occurrence of an Event of Default, at the request of Agent or Requisite Lenders (which request may be made solely during the continuance of an Event of Default) Borrower shall (i) establish lock boxes ("Lock Boxes") and/or blocked accounts ("Blocked Accounts") at one or more of the banks set forth in Delivery Item 3.19 attached to the Delivery Items Certificate, and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, (ii) deposit and cause its Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Lock Box) into one or more Blocked Accounts in Borrower's name or any such Subsidiary's name and at a Relationship Bank and (iii) deliver to each Relationship Bank instructions, revocable only upon Agent's express authorization, directing each Relationship Bank to immediately forward all amounts on deposit to the Collection Account through daily sweeps from such accounts into the Collection Account.
(e) The Disbursement Accounts, each account maintained with a Relationship Bank and the Lock Boxes and Blocked Accounts (if any) shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which Borrower and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreement.
(f) All amounts deposited in the Collection Account shall be deemed received by Agent in accordance with Section 1.10 and shall be applied (and allocated) by Agent in accordance with Section 1.11. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
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Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including an application and agreement for documentary letter of credit or a Master Standby Agreement or Master Documentary Agreement master documentary agreement and a master standby agreement entered into with the Administrative Agent.. ANNEX C (Section 1.8)
Appears in 1 contract
Samples: Credit Agreement (Pediatric Services of America Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers U.S. Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counselfees) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any U.S. Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any the U.S. L/C Issuer to honor a demand for payment under any U.S. Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than (x) to the extent solely as a result of the gross negligence negligence, bad faith or willful misconduct of such Agent Agent, Lender or such Lender U.S. L/C Issuer (as finally determined by a court of competent jurisdiction jurisdiction) or (y) in a finalconnection with any one action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, non-appealable judgment). It is understood the fees and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have expenses of more than one separate firm of attorneys at any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Partytime for all such indemnified Persons.
(ii) As between any Agent and any Lender and BorrowersU.S. Borrower, Borrowers assume U.S. Borrower assumes all risks of the acts and omissions of, or misuse of any U.S. Letter of Credit by beneficiaries, beneficiaries of any U.S. Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any U.S. Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any U.S. Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any U.S. Letter of Credit to comply fully with conditions required in order to demand payment under such U.S. Letter of Credit; provided, that in the case of any payment by any Administrative Agent under any U.S. Letter of Credit or guaranty thereof, such Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence negligence, bad faith or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such U.S. Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such U.S. Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any U.S. Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any U.S. Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers U.S. Borrower in favor of any the U.S. L/C Issuer in any letter U.S. Letter of credit Credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers U.S. Borrower and such the U.S. L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
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Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers U.S. Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counselfees) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any U.S. Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any the U.S. L/C Issuer to honor a demand for payment under any U.S. Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than (x) to the extent solely as a result of the gross negligence negligence, bad faith or willful misconduct of such Agent Agent, Lender or such Lender U.S. L/C Issuer (as finally determined by a court of competent jurisdiction jurisdiction) or (y) in a finalconnection with any one action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, non-appealable judgment). It is understood the fees and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have expenses of more than one separate firm of attorneys at any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Partytime for all such indemnified Persons.
(ii) As between any Agent and any Lender and BorrowersU.S. Borrower, Borrowers assume U.S. Borrower assumes all risks of the acts and omissions of, or misuse of any U.S. Letter of Credit by beneficiaries, beneficiaries of any U.S. Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any U.S. Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any U.S. Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any U.S. Letter of Credit to comply fully with conditions required in order to demand payment under such U.S. Letter of Credit; provided, that in the case of any payment by any Administrative Agent under any U.S. Letter of Credit or guaranty thereof, such Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence negligence, bad faith or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such U.S. Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such U.S. Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any U.S. Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any U.S. Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers U.S. Borrower in favor of any the U.S. L/C Issuer in any letter U.S. Letter of credit Credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers U.S. Borrower and such the U.S. L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.. ANNEX C (Section 1.2)
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Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers jointly and severally hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any none of Agent nor or any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the this Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
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Indemnification; Nature of Lenders’ Duties. (i) In addition to ------------------------------------------ amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Administrative Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Administrative Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (Ai) the issuance of any Letter of Credit or guaranty thereof, or (Bii) the failure of any Administrative Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Administrative Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything No Agent or Lender shall enter into any compromise or settlement in any action as to which such Person intends to seek indemnification hereunder without the contrary herein, no Foreign prior written consent of the Credit Party from whom indemnification hereunder is sought, which consent shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) not be unreasonably withheld or delayed. As between any Administrative Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Creditbeneficiaries thereof. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Administrative Agent nor any Lender shall be responsible forresponsible: (Ai) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (Ciii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of CreditCredit or Eligible Trade L/C; providedprovided that, that in the case of any payment by any -------- Administrative Agent or the L/C Issuer if it is a Lender under any Letter of Credit or guaranty thereof, Administrative Agent or such Agent L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (Div) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (Ev) for errors in interpretation of technical terms; (Fvi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (Gvii) for the credit of the proceeds of any drawing under any Letter of Credit Credit, Eligible Trade L/C or guaranty thereof; and (Hviii) for any consequences arising from causes beyond the control of any Administrative Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Administrative Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) . Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer. ANNEX C (Section 1.8) ----------- to CREDIT AGREEMENT ---------------- CASH MANAGEMENT SYSTEMS ----------------------- Each Credit Party shall, including and shall cause its Subsidiaries to, establish and maintain the Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination Date, each Borrower shall deposit and cause its Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (other than payments made in respect of third-party credit card providers) into bank accounts in such Borrower's name or any such Subsidiary's name (collectively, the "Borrower Accounts") at banks set forth on Disclosure ----------------- ---------- Schedule (3.19) (each, a Master Standby Agreement "Relationship Bank"). On or Master Documentary Agreement before the Closing Date, --------------- ----------------- Bon-Ton shall have established a concentration account in its name (each a "Concentration Account" and collectively, the "Concentration Accounts") at the ---------------------- ---------------------- bank or banks which shall be designated as the Concentration Account bank for each such Borrower on Disclosure Schedule (3.19) (each a "Concentration Account -------------------------- --------------------- Bank" and collectively, the "Concentration Account Banks"), which banks shall be ---- --------------------------- satisfactory to Administrative Agent. At all times after the Closing Date and until the Termination Date, each Borrower shall deposit or cause its Subsidiaries to deposit or cause to be deposited, promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar it payment relating to or constituting payments made in respect of, or on account of, any third-party credit card receivables into the Concentration Account.
(b) On or before the Closing Date (or such later date as Administrative Agent shall consent to in writing), the Concentration Account Bank and each bank where a Disbursement Account is located, shall have entered into tri-party blocked account agreements with Administrative Agent, for the benefit of itself, the other Agent and Lenders, and the applicable Borrower and Subsidiaries thereof, as applicable, in form and substance acceptable to Administrative Agent, which shall become operative on or prior to the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in the applicable Concentration Account are held by such bank as agent or bailee-in-possession for Administrative Agent, on behalf of Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the Closing Date with respect to each Concentration Account Bank, such bank agrees, from and after the receipt of a notice (an "Activation Notice") ----------------- from Administrative Agent (which Activation Notice may be given by Administrative Agent at any time at which (1) a Default or Event of Default shall have occurred and be continuing or (2) Net Borrowing Availability is less than $12,500,000 (each of the foregoing being referred to herein as an "Activation Event")), to immediately forward all amounts received in the -----------------
C-1 applicable Concentration Account to the Collection Account through daily sweeps from such Concentration Account into the Collection Account. From and after the date Administrative Agent has delivered an Activation Notice to any bank with respect to any Disbursement Account(s), no Borrower shall, or shall cause or permit any Subsidiary thereof to, accumulate or maintain cash in disbursement or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements.
(c) On or before the Closing Date (or such later date as Administrative Agent shall consent to in writing), each Relationship Bank, shall have executed and delivered to Administrative Agent, for the benefit of itself, the other Agent and Lenders, and the applicable Borrower and Subsidiaries thereof, as applicable, in form and substance acceptable to Administrative Agent, an agreement which shall become operative on or prior to the Closing Date. Each such agreement shall provide, among other things, that (i) the rights of setoff or recoupment or any other claim against such account, as the case may be, of such Relationship Bank other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment shall be subject to the rights of Administrative Agent to such Borrower Account and the contents thereof, and (ii) from and after the Closing Date to forward from time to time all amounts in such Borrower Account to the Concentration Account Bank.
(d) So long as no Default or Event of Default has occurred and is continuing, Borrowers may amend Disclosure Schedule (3.19) to add or replace a -------------------------- Relationship Bank or Borrower Account or to replace any Concentration Account or any Disbursement Account; provided, however, that (i) Administrative Agent shall -------- ------- ---- have consented in writing in advance to the opening of such account with the relevant bank and (ii) prior to the time of the opening of such account, the applicable Borrower and/or the Subsidiaries thereof, as applicable, and such bank shall have executed and delivered to Administrative Agent a tri-party blocked account agreement or such other agreement, in form and substance satisfactory to Administrative Agent. Borrowers shall close any of their accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within thirty (30) days of notice from Administrative Agent that the creditworthiness of any bank holding an account is no longer acceptable in Administrative Agent's reasonable judgment, or as promptly as practicable and in any event within sixty (60) days of notice from Administrative Agent that the operating performance, funds transfer and/or availability procedures or performance with respect to accounts or lockboxes of the bank holding such accounts or Administrative Agent's liability under any tri-party blocked account agreement or such other agreement with such bank is no longer acceptable in Administrative Agent's reasonable judgment.
(e) The Borrower Accounts, Disbursement Accounts and the Concentration Accounts shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which each Borrower and each Subsidiary thereof shall have granted a Lien to Administrative Agent, on behalf of itself, the other Agent and Lenders, pursuant to the Security Agreement.
(f) All amounts deposited in the Collection Account shall be deemed received by Administrative Agent in accordance with Section 1.10 of the ------------ Agreement and shall be applied (and allocated) by Administrative Agent in accordance with Section 1.11 of the ------------ Agreement. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
(g) Each Borrower may maintain, in its name, an account (each a "Disbursement Account" and collectively, the "Disbursement Accounts") at a bank -------------------- --------------------- acceptable to Administrative Agent into which Administrative Agent shall, from time to time, deposit proceeds of Revolving Credit Advances and Swing Line Advances made to such Borrower pursuant to Section 1.1 for use by such Borrower ----------- solely in accordance with the provisions of Section 1.4. -----------
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers the Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowersthe Borrower, Borrowers assume the Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers the Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers the Borrower and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent, if applicable.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and out-of-pocket expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereofCredit, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit; provided that this assumption is not intended to and shall not preclude Borrower from pursuing such rights and remedies as it may have against the beneficiary at law or under any other agreement. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent Agents nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Revolving Credit Agent under any Letter of Credit or guaranty thereof, such Revolving Credit Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereofCredit; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereofCredit; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s Agents' or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agentall Letter of Credit Additional Documentation which exist from time to time.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers each Borrower hereby agree agrees to pay and to protect, indemnify, indemnify and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty the incurrence of any L/C Obligation in respect thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof of the Agent to make any payment under any L/C Obligation as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender Lender, on the one hand, and Borrowersany Borrower, Borrowers assume on the other hand, such Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiariesby, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: for (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; , (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; , (C) the failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, provided that in the case of any payment by any Agent under any Letter of Credit or guaranty thereofL/C Obligation, such Agent shall be liable only to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof L/C Obligation complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or any guaranty thereof; , (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, messages by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; , (E) errors in interpretation of technical terms; , (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; L/C Obligation, (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; L/C Obligation and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, impair or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the this Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers any Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers any Borrower and such L/C Issuer, including a Master Standby Agreement the application for standby Letter of Credit, master standby agreement, application for documentary Letter of Credit or Master Documentary Agreement entered into with the Administrative Agentmaster agreement for documentary Letter of Credit.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (ia) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than (i) to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a finaljurisdiction), non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder (ii) with respect to any taxes (and amounts relating thereto), the indemnification liabilities that are Obligations of any Domestic Credit Partyfor which shall be governed solely and exclusively by Section 2.22.
(iib) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent or L/C Issuer under any Letter of Credit or guaranty thereof, such Agent or L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iiic) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer, including an Application and Agreement for Documentary Letter of Credit or a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers the Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each the Agent and each Lender lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which the Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any the Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof therefor as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such the Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any the Agent and any Lender and Borrowersthe Borrower, Borrowers assume the Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any the Agent nor any Lender shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedCredit or, that in the case of any payment by any the Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss for errors, omissions, interruptions or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Agent or any Lender; provided that, in the case of any payment by the Agent under any Letter of Credit or guaranty thereof, the Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction). None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers the Borrower in favor of any L/C Issuer in any letter Letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers the Borrower and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers UK Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counselfees) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any UK Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any the UK L/C Issuer to honor a demand for payment under any UK Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than (x) to the extent solely as a result of the gross negligence or willful misconduct of such Agent Agent, Lender or such Lender UK L/C Issuer (as finally determined by a court of competent jurisdiction jurisdiction) or (y) in a finalconnection with any one action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, non-appealable judgment). It is understood the fees and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have expenses of more than one separate firm of attorneys at any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Partytime for all such indemnified Persons.
(ii) As between any Agent and any Lender and BorrowersUK Borrower, Borrowers assume UK Borrower assumes all risks of the acts and omissions of, or misuse of any UK Letter of Credit by beneficiaries, beneficiaries of any UK Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any UK Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any UK Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any UK Letter of Credit to comply fully with conditions required in order to demand payment under such UK Letter of Credit; provided, that in the case of any payment by any Administrative Agent under any UK Letter of Credit or guaranty thereof, such Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence negligence, bad faith or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such UK Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such UK Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any UK Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any UK Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers UK Borrower in favor of any the UK L/C Issuer in any letter UK Letter of credit Credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers UK Borrower and such the UK L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers each Loan Party hereby agree jointly and severally agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counselcounsel without duplication) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any the L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authorityapplicable governmental authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s 's rights or powers hereunder or under the this Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any the L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such the L/C Issuer; provided that in the event of a conflict between the terms of this Agreement and any such application, including a Master Standby reimbursement agreement or similar document, the terms of this Agreement or Master Documentary Agreement entered into with the Administrative Agentshall govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Salient Surgical Technologies, Inc.)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts ------------------------------------------ payable as elsewhere provided in the Agreementthis Section 2.13, Borrowers without duplication, Borrower hereby agree to pay and agrees to protect, indemnify, pay and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any which Lender may incur or be subject to as a consequence, direct or indirect, of (Ai) the issuance of any the Letter of Credit or guaranty thereof, or (Bii) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment drawing under any the Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence Authority (all such acts or willful misconduct of such Agent or such Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgment-- ----- omissions herein called "Government Acts"). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent the Borrower and any Lender and BorrowersLender, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any the Letter of Credit by beneficiaries, the respective beneficiary of any such Letter of Credit. In furtherance and not in limitation of the foregoing, to in the fullest extent permitted by lawabsence of Lender's gross negligence or intentional misconduct, neither any Agent nor any Lender shall not be responsible forresponsible: (Ai) for the form, validity, sufficiency, accuracy, genuineness or legal effect effects of any document issued submitted by any party in connection with the application for and issuance of any such Letter of Credit, even if it should in fact prove to be in any or of all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (Ciii) for failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to demand payment under draw upon such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgmentiv) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be are in cipher; (Ev) for errors in interpretation of technical terms; (Fvi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment drawing under any such Letter of Credit or guaranty thereof or of the proceeds thereof; (Gvii) for the credit misapplication by the beneficiary of such Letter of Credit of the proceeds of any drawing under any such Letter of Credit or guaranty thereofCredit; and (Hviii) for any consequences arising from causes beyond the control of Lender, including, without limitation, any Agent or any LenderGovernment Acts. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s 's rights or powers hereunder or under the Agreementhereunder.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers European Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersEuropean Borrower, Borrowers European Borrower assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedPROVIDED, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers European Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among European Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.. ANNEX C (SECTION 1.8) TO CREDIT AGREEMENT CASH MANAGEMENT SYSTEM
Appears in 1 contract
Samples: Credit Agreement (Inverness Medical Innovations Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, _PROVIDED that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer, including an Application and Agreement for Documentary Letter of Credit or a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with Agent. _ANNEX C (SECTION 1.8) TO CREDIT AGREEMENT CASH MANAGEMENT SYSTEM Borrower shall, and shall cause the Administrative Secured Guarantors to, establish and maintain the Cash Management Systems described below:
(a) Before the Closing Date and until the Termination Date, Borrower shall (i) establish lock boxes ("LOCK BOXES") or, at Agent's discretion, blocked accounts ("BLOCKED ACCOUNTS") at one or more of the banks set forth in DISCLOSURE SCHEDULE (3.18), and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, and (ii) deposit and cause the Secured Guarantors to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Lock Box) into one or more Blocked Accounts in Borrower's name or any such Secured Guarantor's name and at a bank identified in DISCLOSURE SCHEDULE (3.18) (each, a "RELATIONSHIP BANK"). On or before the Closing Date, Borrower shall have established a concentration account in its name (the "CONCENTRATION ACCOUNT") at the bank that shall be designated as the Concentration Account bank for Borrower in DISCLOSURE SCHEDULE (3.18) (the "CONCENTRATION ACCOUNT BANK") which bank shall be reasonably satisfactory to Agent.
(b) Borrower may maintain, in its name, an account (each a "DISBURSEMENT ACCOUNT" and collectively, the "DISBURSEMENT ACCOUNTS") at a bank acceptable to Agent into which Agent shall, from time to time, deposit proceeds of Revolving Credit Advances and Swing Line Advances made to Borrower pursuant to SECTION 1.1 for use by Borrower in accordance with the provisions of SECTION 1.4.
(c) On or before the Closing Date (or such later date as Agent shall consent to in writing), the Concentration Account Bank, each bank where a Disbursement Account is maintained and all other Relationship Banks, shall have entered into tri-party blocked account agreements with Agent, for the benefit of itself and Lenders, and Borrower and the Secured Guarantors, as applicable, in form and substance reasonably acceptable to Agent, which shall become operative on or prior to the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in the Concentration Account are held by such bank as agent or bailee-in-possession for Agent, on behalf of itself and Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the Closing Date (A) with respect to banks at which a Blocked Account is maintained, such bank agrees, from and after the receipt of a notice (an "ACTIVATION NOTICE") from Agent (which Activation Notice may be given by Agent at any time at which an Event of Default described in SECTIONS 8.1(a), 8.1(b) (AS A RESULT OF A BREACH OF ANY OF SECTIONS 1.4, 1.8, 5.4(a), 6.1, 6.2, 6.5, C-1 _6.6, 6.7, 6.8, 6.10, 6.12, 6.14, AND 6.19), 8.1(f), 8.1(h) OR 8.1(i) has occurred and is continuing (any of the foregoing being referred to herein as an "ACTIVATION EVENT"), to forward immediately all amounts in each Blocked Account to the Concentration Account Bank and to commence the process of daily sweeps from such Blocked Account into the Concentration Account and (B) with respect to the Concentration Account Bank, such bank agrees from and after the receipt of an Activation Notice from Agent upon the occurrence of an Activation Event, to immediately forward all amounts received in the Concentration Account to the Collection Account through daily sweeps from such Concentration Account into the Collection Account. From and after the date Agent has delivered an Activation Notice to any bank with respect to any Blocked Account(s), Borrower shall not, and shall not cause or permit any Secured Guarantor to, accumulate or maintain cash in Disbursement Accounts or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements.
(d) So long as no Default or Event of Default has occurred and is continuing, Borrower may amend DISCLOSURE SCHEDULE (3.19) to add or replace a Relationship Bank, Lock Box or Blocked Account or to replace any Concentration Account or any Disbursement Account; PROVIDED that prior to the time of the opening of such account or Lock Box, Borrower or the Secured Guarantors, as applicable, and such bank shall have executed and delivered to Agent a tri-party blocked account agreement, in form and substance reasonably satisfactory to Agent. Borrower shall close any of its depository, lock box or concentration accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within 30 days following notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within 60 days following notice from Agent that the operating performance, funds transfer or availability procedures or performance with respect to accounts or Lock Boxes of the bank holding such accounts or Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Agent's reasonable judgment.
Appears in 1 contract
Samples: Credit Agreement (Roller Bearing Co of America Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence negligence, bad faith or willful misconduct of such Agent or such Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit PartyLender.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence negligence, bad faith or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender except as a result of the Agent’s or any Lender’s gross negligence, bad faith or willful misconduct. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including Issuer and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.. ANNEX C (Section 1.8)
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless Agent, each Agent Lender and each Lender L/C Issuer from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that which Agent, any Agent Lender or any Lender L/C Issuer may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of Agent, such Agent Lender or such Lender L/C Issuer (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It No Agent, Lender or L/C Issuer shall enter into any compromise or settlement in any action as to which such Person intends to seek indemnification hereunder without the prior written consent of the Loan Party from whom indemnification hereunder is understood and agreed thatsought, notwithstanding anything to the contrary herein, no Foreign Credit Party which consent shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Partynot be unreasonably withheld or delayed.
(ii) As between any Agent and Agent, any Lender and Borrowersany L/C Issuer, Borrowers assume and Borrower, Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Creditbeneficiaries thereof. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by lawlaw neither Agent, neither any Agent Lender nor any Lender L/C Issuer shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent or the L/C Issuer if it is a Lender or an Affiliate of a Lender under any Letter of Credit or guaranty thereof, Agent or such Agent L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of Agent, any Agent Lender or any LenderL/C Issuer. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer, including a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers each Loan Party hereby agree jointly and severally agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counselcounsel without duplication) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any the L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authorityapplicable governmental authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the this Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any the L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such the L/C Issuer; provided that in the event of a conflict between the terms of this Agreement and any such application, including a Master Standby reimbursement agreement or similar document, the terms of this Agreement or Master Documentary Agreement entered into with the Administrative Agentshall govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Salient Surgical Technologies, Inc.)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers each Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless Agent, each Agent Issuing Bank and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent the Agent, Issuing Bank or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any the Agent or any Lender seeking indemnification or of any L/C Issuer Issuing Bank to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent the Agent, Issuing Bank or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent the Agent, the Issuing Bank and any Lender Lender, on one hand, and the Borrowers, the Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by lawlaw none of the Agent, neither any Agent nor the Issuing Bank or any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and an issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent or Issuing Bank under any Letter of Credit (or guaranty thereof), such Agent or Issuing Bank shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent Agent, Issuing Bank or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's, Issuing Bank's or any Lender’s 's rights or powers hereunder or under the this Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants covenants, or indemnities made by Borrowers the any Borrower in favor of any L/C Issuer Issuing Bank in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers such Borrower and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative AgentIssuing Bank.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers each Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Partyjurisdiction.
(ii) As between any Agent and any Lender and Borrowerseach Borrower, Borrowers assume each Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgment) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers any Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers any Borrower and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.. ANNEX C (Section 1.8)
Appears in 1 contract
Samples: Credit Agreement (Northland Cable Properties Seven Limited Partnership)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts ------------------------------------------ payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (Ai) the issuance of any Letter of Credit or guaranty thereof, or (Bii) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender Lender, on the one hand, and BorrowersBorrowers and Guarantors, on the other hand, Borrowers and Guarantors assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible forresponsible: (Ai) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (Ciii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, provided that in the case -------- of any payment by any Agent or the L/C Issuer if it is a Lender under any Letter of Credit or guaranty thereof, Agent or such Agent L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (Div) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (Ev) for errors in interpretation of technical terms; (Fvi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (Gvii) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and or (Hviii) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) . Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.. 000 XXXXX X XX XXX XXXXXX XXXXXX BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
Appears in 1 contract
Samples: Post Petition Loan and Guaranty Agreement (Montgomery Ward Holding Corp)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Agreement for Documentary Letter of Credit or a Master Agreement for Standby Agreement or Master Documentary Agreement entered into with Agent. ANNEX C (SECTION 1.8) TO AMENDED AND RESTATED CREDIT AGREEMENT CASH MANAGEMENT SYSTEM Each Credit Party shall, and shall cause its Subsidiaries to, establish and maintain the Administrative Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination Date, each Borrower and Subsidiary Guarantor shall (i) establish the lock boxes ("Lock Boxes") identified in DISCLOSURE SCHEDULE (3.19), and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, and (ii) deposit and cause its Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Lock Box) into one or more blocked accounts in such Borrower's name or any such Subsidiary's name ("Blocked Accounts") identified in DISCLOSURE SCHEDULE (3.19) at the banks corresponding thereto (each, a "Relationship Bank"). On or before the Closing Date, Borrowers shall have established concentration account (the "Concentration Account") identified in DISCLOSURE SCHEDULE (3.19) at the bank corresponding thereto (the "Concentration Account Bank").
(b) Each Credit Party may maintain, in its name, an account (each a "Disbursement Account" and collectively, the "Disbursement Accounts") at a bank reasonably acceptable to Agent into which Agent shall, from time to time with respect to Borrowers, deposit proceeds of Revolving Credit Advances and Swing Line Advances made to Borrowers pursuant to SECTION 1.1 for use by such Borrower solely in accordance with the provisions of SECTION 1.4.
(c) On or before the Closing Date (or such later date as Agent shall consent to in writing), the Concentration Account Bank, each bank where a Disbursement Account is maintained and all other Relationship Banks, shall have entered into tri-party blocked account agreements with Agent, for the benefit of itself and Lenders, and the applicable Credit Party, in form and substance reasonably acceptable to Agent, which shall become operative on or prior to the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in the applicable deposit account are held by such bank as agent or bailee-in-possession for Agent, on behalf of itself and Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the Closing Date (A) with respect to banks at which a Blocked Account is maintained, such bank agrees, from and after the receipt of a notice (an "Activation Notice") from Agent (which Activation Notice may be given by Agent at any time at which a Dominion Activation Event has occurred), to forward immediately all amounts in each Blocked Account to the Concentration Account Bank and to commence the process of daily sweeps from such Blocked Account into the Concentration Account and (B) with respect to the Concentration Account Bank, such bank agrees from and after the receipt of an Activation Notice from Agent, to immediately forward all amounts received in the Concentration Account to the Collection Account through daily sweeps from such Concentration Account into the Collection Account. Following the delivery of an Activation Notice, Agent has the right to continue to direct the daily sweeps and other actions described in clauses (iii)(A) and (B) above for a period of at least 90 days thereafter subject to the terms of the following provisions (each such 90 day period occurring at any time and from time to time, a "Triggered Sweep Period"). At such time as Borrowers achieve and maintain average Borrowing Availability in excess of $7,500,000 (as of any applicable date, a "Borrowing Availability Resolution") for a period of 30 consecutive days commencing no earlier than the 60th day after the applicable Triggered Sweep Period ( as of any applicable date, a"30 Day Look Back Period"), Agent shall no longer (subject to the provisions of the last paragraph of this subsection (c)) have any such right as of the end of the next Fiscal Quarter occurring after the expiration of such 30 day Look Back Period following an applicable Triggered Sweep Period, and shall take all necessary actions to notify the applicable banks thereof. For purposes of clarity, and by way of example, if a Dominion Activation Event shall occur on April 15, 2007, the Triggered Sweep Period shall be from April 15, 2007 through and including July 14, 2007, during which time, following the delivery of an Activation Notice, Agent has the right to direct the daily sweeps and other actions described in clauses (iii)(A) and (B) above. If Borrowers achieve the Borrowing Availability Resolution on July 14, 2007 by achieving and maintaining average Borrowing Availability in excess of $7,500,000 from June 15, 2007 through and including July 14, 2007 (which time period would be the 30 Day Look Back Period), Agent has the right to continue to direct the daily sweeps and other actions described in clauses (iii)(A) and (B) above for and at all times from the first day of the Triggered Sweep Period (which in this example is April 15, 2007) through and including the Fiscal Quarter ending September 30, 2007. If on September 30, 2007 (i) a Dominion Activation Event has not occurred as of such date and (ii) no Default or Event of Default has occurred (including, without limitation, a breach of the financial covenants set forth in Annex G hereof as calculated and measured on September 30, 2007), Agent shall no longer have the right to continue to direct the daily sweeps and other actions described in clauses (iii)(A) and (B) above as of the end of the next Fiscal Quarter ended December 31, 2007. If either of clauses (i) or (ii) of the preceding sentences is not met on September 30, 2007, the Agent shall have the right to continue to direct the daily sweeps and other actions described in clauses (iii)(A) and (B) above for the Fiscal Quarter ended December 31, 2007. In addition, it is understood and agreed that upon the occurrence of any subsequent Dominion Activation Event, the Borrowers shall comply with the provisions of this Annex C once again (i.e., Agent may again have the right to present an Activation Notice and commence sweeps of the accounts as described above).
(d) So long as no Default or Event of Default has occurred and is continuing, Borrowers may amend DISCLOSURE SCHEDULE (3.19) to add or replace a Relationship Bank, Lock Box or Blocked Account or to replace any Concentration Account or any Disbursement Account; provided, that (i) Agent shall have consented in writing in advance to the opening of such account or Lock Box with the relevant bank and (ii) prior to the time of the opening of such account or Lock Box, the applicable Borrower or its Subsidiaries, as applicable, and such bank shall have executed and delivered to Agent a tri-party blocked account agreement, in form and substance reasonably satisfactory to Agent. Borrowers shall close any of their accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within 30 days following notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within 60 days following notice from Agent that the operating performance, funds transfer or availability procedures or performance with respect to accounts or Lock Boxes of the bank holding such accounts or Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(e) The Lock Boxes, Blocked Accounts, Disbursement Accounts and the Concentration Account shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which each Borrower and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreement.
(f) All amounts deposited in the Collection Account shall be deemed received by Agent in accordance with SECTION 1.10 and shall be applied (and allocated) by Agent in accordance with SECTION 1.11. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
(g) Each Borrower and each Subsidiary Guarantor shall and shall cause its Affiliates, officers, employees, agents, directors or other Persons acting for or in concert with such Borrower (each a "Related Person") to (i) hold in trust for Agent, for the benefit of itself and Lenders, all checks, cash and other items of payment received by such Borrower or any such Related Person, and (ii) within one Business Day after receipt by such Borrower or any such Related Person of any checks, cash or other items of payment, deposit the same into a Blocked Account of such Borrower. Each Borrower on behalf of itself and each Related Person thereof acknowledges and agrees that all cash, checks or other items of payment constituting proceeds of Collateral are part of the Collateral. All proceeds of the sale or other disposition of any Collateral, shall be deposited directly into the applicable Blocked Accounts.
Appears in 1 contract
Samples: Credit Agreement (Ddi Corp)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each the Administrative Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any the Administrative Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any the Administrative Agent or any Lender seeking indemnification or of any the L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender indemnified person (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any the Administrative Agent and any Lender and on the one hand and, on the other hand, the Borrowers, the Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiariesby, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any the Administrative Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; , (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; , (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any the Administrative Agent under any Letter of Credit or guaranty thereof, such the Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; , (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; , (E) errors in interpretation of technical terms; , (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; , (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; , and (H) any consequences arising from causes beyond the control of any the Administrative Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any the Administrative Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any the L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such the L/C Issuer, including an Application and Agreement For Documentary Letter of Credit or a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative AgentL/C Issuer.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Agent or any B-4 Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedPROVIDED that, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer. ANNEX C (SECTION 1.8) TO CREDIT AGREEMENT CASH MANAGEMENT SYSTEMS Borrower shall, including and shall cause its Subsidiaries to, establish and maintain the Cash Management Systems described below:
(a) On or before the Closing Date (or such later date as Agent shall consent to in writing) and until the Termination Date, Borrower shall (i) establish post office lock boxes ("LOCK BOXES") at one or more of the banks set forth on DISCLOSURE SCHEDULE (3.19), and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, and (ii) deposit and cause its Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral ("COLLECTIONS"), including, without limitation, payments, if any, in respect of the Lebanon IRBs (whether or not otherwise delivered to a Master Standby Agreement Lock Box) into bank accounts in Borrower's name or Master Documentary Agreement any such Subsidiary's name (collectively, the "BORROWER ACCOUNTS") at banks set forth on DISCLOSURE SCHEDULE (3.19) (each, a "RELATIONSHIP BANK"); provided that notwithstanding the foregoing all Collections shall only be deposited into the Lockboxes and/or the Lockbox Concentration Amount referred to in the immediately succeeding sentence. Borrower acknowledges and agrees that as of the Closing Date it has established the following Lock Boxes at Xxxxxx Trust and Savings Bank: 95379, 95845 and 95396; and all such Lock Boxes are attached to Borrower Account, account no. 000-000-0, at Xxxxxx Trust and Savings Bank (the "LOCK BOX CONCENTRATION AMOUNT").
(b) On or before the Closing Date (or such later date as Agent shall consent to in writing), each Relationship Banks, shall have entered into tri-party blocked account agreements with Agent, for the benefit of itself and Lenders, and Borrower and its Subsidiaries, as applicable, in form and substance acceptable to Agent, which shall become operative on or prior to the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in the Collection Account are held by such bank as agent or bailee-in-possession for Agent, on behalf of Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the Closing Date with respect to banks at which a Borrower Account is located, such bank agrees to forward immediately all amounts in Borrower Account to the Collection Account and to commence the process of daily sweeps from such Borrower Account into the Collection Account. Borrower shall not,
C-1 and shall not cause or permit any Subsidiary thereof to, accumulate or maintain cash in disbursement or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements.
(c) So long as no Default or Event of Default has occurred and is continuing, Borrower may amend DISCLOSURE SCHEDULE (3.19) to add or replace a Relationship Bank, Lock Box or Borrower Account or to replace any Disbursement Account; PROVIDED, HOWEVER, THAT (i) Agent shall have consented in writing in advance to the opening of such account or Lock Box with the Administrative relevant bank and (ii) prior to the time of the opening of such account or Lock Box, Borrower and/or the Subsidiaries thereof, as applicable, and such bank shall have executed and delivered to Agent a tri-party blocked account agreement, in form and substance satisfactory to Agent. Borrower shall close any of its accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within thirty (30) days of notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within sixty (60) days of notice from Agent that the operating performance, funds transfer and/or availability procedures or performance with respect to accounts or lockboxes of the bank holding such accounts or Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(d) The Lock Boxes, Borrower Accounts and Disbursement Accounts (other than any payroll account) shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which Borrower and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreements.
(e) All amounts deposited in the Collection Account shall be deemed received by Agent in accordance with SECTION 1.10 of the Agreement and shall be applied (and allocated) by Agent in accordance with SECTION 1.11 of the Agreement. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
(f) Borrower may maintain, in its name, an account (each a "DISBURSEMENT ACCOUNT" and collectively, the "DISBURSEMENT ACCOUNTS") at a bank acceptable to Agent into which Agent shall, from time to time, deposit proceeds of Revolving Credit Advances made to Borrower pursuant to SECTION 1.1 for use by Borrower solely in accordance with the provisions of SECTION 1.4; provided that Borrower shall not have a deposit in its checking, controlled disbursement or xxxxx cash accounts of more than $10,000 in the aggregate for any two consecutive Business Days or deposit into any such accounts (other than the xxxxx cash account) more funds than are necessary to clear checks and other items of payment which are presented for payment on such Business Day.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Lower Lakes hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent Agent, L/C Guarantor and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ legal fees and allocated costs of internal counsel) that any Agent Agent, L/C Guarantor or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty guarantee thereof, or (B) the failure of any Agent Agent, L/C Guarantor or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty guarantee thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case case, other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent Agent, L/C Guarantor and any Lender and BorrowersLower Lakes, Borrowers assume Lower Lakes assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent none of Agent, L/C Guarantor nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty guarantee thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty guarantee thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty guarantee thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty guarantee thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty guarantee thereof; and (H) any consequences arising from causes beyond the control of any Agent Agent, L/C Guarantor or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's, L/C Guarantor's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Lower Lakes in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Lower Lakes and such L/C Issuer.
(iv) Notwithstanding anything else to the contrary herein, including if any Lender is a Master Standby Agreement Non-Funding Lender or Master Documentary Agreement entered into Impacted Lender, no L/C Issuer shall be obligated to issue any Letter of Credit unless (w) the Non-Funding Lender or Impacted Lender has been replaced in accordance with Section 11.21 or 9.1, (x) the Administrative Agent.Letter of Credit Obligations of such Non-Funding Lender or Impacted Lender have been cash collateralized, (y) the Revolving Loan Commitments of the other Lenders have been increased by an amount sufficient to satisfy Agent that all future Letter of Credit Obligations will be covered by all Revolving Lenders that are not Non-Funding Lenders or Impacted Lenders, or (z) the Letter of Credit Obligations of such Non-Funding Lender or Impacted Lender have been reallocated to other Revolving Lenders in a manner consistent with subsection 9.9(d)(ii),
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any Annex B-4 party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including an Application and Agreement For Documentary Letter of Credit, a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.. ANNEX C (SECTION 1.8) TO
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Administrative Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Administrative Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Administrative Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Administrative Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Administrative Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Administrative Agent nor any Lender shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Administrative Agent under any Letter of Credit or guaranty thereof, such Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Administrative Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Administrative Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer. ANNEX C (SECTION 1.8) TO CREDIT AGREEMENT CASH MANAGEMENT SYSTEMS Each Credit Party shall, including and shall cause its Subsidiaries to, establish and maintain the Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination Date, Borrower shall (i) establish lock boxes ("Lock Boxes") at one or more of the banks set forth on Disclosure Schedule (3.19), and shall request in writing within thirty (30) days after the Closing Date and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, and (ii) deposit and cause its Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Master Standby Agreement Lock Box) into bank accounts in Borrower's name or Master Documentary Agreement entered into with any such Subsidiary's name (collectively, the "Borrower Accounts") at banks set forth on Disclosure Schedule (3.19) (each, a "Relationship Bank"). On or before the Closing Date, Borrower shall have established a concentration account in its name (the "Concentration Account") at the bank which shall be designated as the Concentration Account bank for Borrower on Disclosure Schedule (3.19) (the "Concentration Account Bank") which bank shall be satisfactory to Administrative Agent.
(b) On or before the Closing Date (or such later date as Administrative Agent shall consent to in writing), the Concentration Account Bank, each bank where a Disbursement Account is located and all other Relationship Banks, shall have entered into tri-party blocked account agreements with Administrative Agent, for the benefit of itself, Documentation Agent and Lenders, and Borrower and Subsidiaries thereof, as applicable, in form and substance acceptable to Administrative Agent, which shall become operative on or prior to the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in the Concentration Account are held by such bank as agent or bailee-in-possession for Administrative Agent, on behalf of itself, Documentation Agent and Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the Closing Date (A) with respect to banks at which a Borrower Account is located, such bank agrees, from and after the receipt of a notice (an "Activation Notice") from Administrative Agent (which Activation Notice may be given by Administrative Agent at any time at which (1) a Default or Event of Default shall have occurred and be continuing, (2) Administrative Agent reasonably believes based upon information available to it that a Default or an Event of Default is likely to occur; (3) if amounts are outstanding under the Revolving Credit Loan, Administrative Agent reasonably believes that an event or circumstance has occurred which is likely to have a Material Adverse Effect, or (4) Administrative Agent reasonably has grounds to 115 question the integrity of Borrower's Cash Management Systems or Borrower's compliance with the provisions of this Annex C or any other provisions of the Loan Documents to the extent related to such Cash Management Systems (any of the foregoing being referred to herein as an "Activation Event")), to forward immediately all amounts in each Borrower Account to the Concentration Account Bank and to commence the process of daily sweeps from such Borrower Account into the Concentration Account and (B) with respect to the Concentration Account Bank, such bank agrees from and after the receipt of an Activation Notice from Administrative Agent upon the occurrence of an Activation Event, to immediately forward all amounts received in the Concentration Account to the Collection Account through daily sweeps from such Concentration Account into the Collection Account. From and after the date Administrative Agent has delivered an Activation Notice to any bank with respect to any Borrower Account(s), Borrower shall not, and shall not cause or permit any Subsidiary thereof to, accumulate or maintain cash in disbursement or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements.
(c) So long as no Default or Event of Default has occurred and is continuing, Borrower may amend Disclosure Schedule (3.19) to add or replace a Relationship Bank, Lock Box or Borrower Account or to replace any Concentration Account or any Disbursement Account; provided, however, that (i) Administrative Agent shall have consented in writing in advance to the opening of such account or Lock Box with the relevant bank and (ii) prior to the time of the opening of such account or Lock Box, Borrower and/or the Subsidiaries thereof, as applicable, and such bank shall have executed and delivered to Administrative Agent a tri-party blocked account agreement, in form and substance satisfactory to Administrative Agent. Borrower shall close any of its accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within thirty (30) days of notice from Administrative Agent that the creditworthiness of any bank holding an account is no longer acceptable in Administrative Agent's reasonable judgment, or as promptly as practicable and in any event within sixty (60) days of notice from Administrative Agent that the operating performance, funds transfer and/or availability procedures or performance with respect to accounts or lockboxes of the bank holding such accounts or Administrative Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Administrative Agent's reasonable judgment.
(d) The Lock Boxes, Borrower Accounts, Disbursement Accounts and the Concentration Account shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which Borrower and each Subsidiary thereof shall have granted a Lien to Administrative Agent, on behalf of itself, Documentation Agent and Lenders, pursuant to the Security Agreement.
(e) All amounts deposited in the Collection Account shall be deemed received by Administrative Agent in accordance with Section 1.10 of the Agreement and shall be applied (and allocated) by Administrative Agent in accordance with Section 1.11 of the Agreement. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
Appears in 1 contract
Samples: Credit Agreement (Playcore Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers each of US Borrower and European Borrower, as applicable, hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereofthereof on its behalf, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit issued on its behalf or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers any Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers such Borrower and such L/C Issuer, including a the US Master Standby Agreement or and European Master Documentary Standby Agreement entered into with the Administrative Agent.. ANNEX C (SECTION 1.8) to CREDIT AGREEMENT
Appears in 1 contract
Samples: Credit Agreement (Inverness Medical Innovations Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers Borrower hereby agree to pay and agrees to protect, indemnify, pay and save harmless each Agent and each Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A1) the issuance of any Letter of Credit or guaranty thereof, other than as a result of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction or (B2) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgment)governmental authority. It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and Borrower and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible forresponsible: (Ai) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (Ciii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its has not acted with gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (Div) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (Ev) for errors in interpretation of technical terms; (Fvi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (Gvii) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (Hviii) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder hereunder. ANNEX C TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF DECEMBER 30, 1996 CASH MANAGEMENT SYSTEMS The Borrower shall, and shall cause its Subsidiaries to, establish and maintain the Cash Management Systems described below:
(a) Prior to the Closing Date and for so long as the Revolving Credit Loan, any of the Term Loans or under any other Obligations are outstanding, Borrower shall deposit and shall cause its Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral into bank accounts in Borrower's name or such Subsidiary's name (collectively, the "Borrower Accounts") at banks set forth on Schedule 3.22. Prior to the Closing Date, Borrower shall have established a concentration account in Borrower's name (the "Concentration Account") at LaSalle National Bank, which shall be designated as the Concentration Account bank on Schedule 3.22, in accordance with a blocked account agreement in form and substance satisfactory to Agent, in its sole discretion.
(b) Prior to the Closing Date, LaSalle National Bank, as Concentration Account bank, and all of the banks set forth on Schedule 3.22 with which Borrower or any Subsidiary thereof has any relationship other than as the holder of a deposit account, including by way of example any mortgage or other lending relationship (each such bank a "Relationship Bank"), shall have entered into triparty blocked account agreements with Agent, for the benefit of itself and Lenders, and Borrower and/or each such Subsidiary, as applicable, in form and substance acceptable to Agent, which shall become operative prior to the Closing Date at LaSalle National Bank, as the bank where the Concentration Account is maintained, and all Relationship Banks at which Borrower Accounts are maintained. Borrower shall clearly designate each bank which is a Relationship Bank as such on Schedule 3.22. Each such blocked account agreement shall provide, among other things, that:
(i) all items of payment deposited in such Borrower Account and proceeds thereof deposited in such Concentration Account are held by such bank as agent or bailee-in- possession for Agent;
(ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such Borrower Account or Concentration Account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment; and
(iii) prior to the Closing Date (A) with respect to each bank at which a Borrower Account is located, such bank agrees to forward immediately all amounts in Borrower Account to the Concentration Account and to commence the process of daily sweeps from such Borrower Account into the Concentration Account and (B) with respect to the bank at which the Concentration Account is located, such bank agrees to forward immediately all amounts received in the Concentration Account to the Collection Account through daily sweeps from such Concentration Account into the Collection Account.
(c) Prior to the Closing Date, Borrower shall cause each and every bank at which any Borrower Account is located, including each Relationship Bank and each of the other banks at which any Borrower Account is located, to (i) forward immediately, and in no event less frequently than once each Business Day, all amounts in Borrower Accounts at such bank to the Concentration Account and (ii) commence, and continue each Business Day, the process of daily sweeps from each such Borrower Account into the Concentration Account. Prior to the Closing Date, Borrower shall cause LaSalle National Bank, as the bank where the Concentration Account is located, to forward immediately all amounts received in the Concentration Account to the Collection Account through daily sweeps from such Concentration Account into the Collection Account.
(d) So long as no Default or Event of Default has occurred and is continuing, Borrower may amend Schedule 3.22 to add or replace a Borrower Account or replace the Concentration Account; provided, however, that (i) Agent shall have consented in writing to the opening of such account with the relevant bank, and (ii) prior to the time of the opening of such account, Borrower and/or the Subsidiaries thereof, as applicable, and such bank shall have executed and delivered to Agent a triparty blocked account agreement, in form and substance satisfactory to Agent.
(e) The Borrower Accounts and the Concentration Account shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Revolving Credit Loan, each of the Term Loans and all other Obligations, and in which Borrower or such Subsidiary shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreement.
(iiif) Nothing contained herein All amounts deposited in the Collection Account shall be deemed received by Agent in accordance with Section 1.13 of the Agreement and shall be applied (and allocated) by Agent in accordance with Section 1.14 of the Agreement. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to limit or the Collection Account.
(g) The Borrower may maintain, in its name, an account (the "Disbursement Account") at a bank acceptable to expand any waiversAgent into which, covenants or indemnities Agent shall, from time to time, deposit proceeds of Revolving Credit Advances made pursuant to Section 1.1 of the Agreement for use by Borrowers Revolver Borrower solely in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into accordance with the Administrative provisions of Section 1.7 of the Agreement. The Disbursement Account shall be a cash collateral account, with all cash, checks and other similar items of payment in such account securing payment of the Revolving Credit Loan, each of the Term Loans and all other Obligations, and in which Borrower shall have granted a Lien to Agent, for the benefit of itself and Lenders, pursuant to the Security Agreement. The Disbursement Account shall be subject to a triparty blocked account agreement identical to the agreement governing Borrower Accounts and the Concentration Account; provided, however, that, according to the terms thereof, such agreement shall become effective upon the occurrence of a default or an Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Artra Group Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Obligors, jointly and severally, hereby agree to pay and to protect, indemnify, pay and save harmless each Agent and each Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A1) the issuance of any Letter of Credit or guaranty thereof, other than as a result of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction or (B2) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as determined by a court of competent jurisdiction in a final, non-appealable judgment)governmental authority. It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and Obligors and any Lender and BorrowersObligors, Borrowers Obligors assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible forresponsible: (Ai) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (Ciii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedPROVIDED that, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its has not acted with gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (Div) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (Ev) for errors in interpretation of technical terms; (Fvi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (Gvii) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (Hviii) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder hereunder. ANNEX C (SECTION 1.7) TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT CASH MANAGEMENT SYSTEMS Each Obligor shall, and each Obligor shall cause its Subsidiaries to, establish and maintain the Cash Management Systems described below:
(a) For so long as the Revolving Credit Loan or under any other Obligations are outstanding, each Obligor and Subsidiary thereof shall (i) establish lock boxes ("LOCK BOXES") at one or more of the banks set forth on SCHEDULE 1.7 and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes and (ii) deposit and cause each Subsidiary thereof to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Lock Box) into bank accounts in such Obligor's or Subsidiary's name (collectively, the "OBLIGOR ACCOUNTS") at banks set forth on SCHEDULE 1.7 (each, a "RELATIONSHIP BANK"). Prior to the Closing Date, Obligors shall have established a concentration account in Obligors' name (the "CONCENTRATION ACCOUNT") at the bank which shall be designated as the Concentration Account bank on SCHEDULE 1.7 (the "CONCENTRATION ACCOUNT BANK"), in accordance with a blocked account agreement in form and substance and with such bank as shall be satisfactory to Agent, in its sole discretion.
(b) Prior to the Closing Date, the Concentration Account Bank, and each of the banks set forth on SCHEDULE 1.7 shall have entered into triparty blocked account agreements with Agent, for the benefit of itself and Lenders, and each applicable Obligor and Subsidiary thereof, in form and substance acceptable to Agent. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in such Concentration Account are held by such bank as agent or bailee-in-possession for the Agent, on behalf of Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the date on which such bank receives an Activation Notice (as defined below) (A) with respect to banks at which an Obligor Account is located, such bank agrees to forward immediately all amounts in each Obligor Account to the Concentration Account Bank and to commence the process of daily sweeps from such Obligor Account into the Concentration Account and (B) with respect to the Concentration Account Bank, such bank agrees to forward immediately all amounts received in the Concentration Account to the Collection Account through daily sweeps from such Concentration Account Bank into the Collection Account; PROVIDED, HOWEVER, that prior to delivery by Agent of written notice ("ACTIVATION NOTICE") to the Concentration Account Bank, the Relationship Banks and Holdings, each Obligor shall have access to and use of any cash or other funds in the Obligor Accounts, and the Concentration Account Bank and the Relationship Banks shall not be required to transfer cash in the Obligor Accounts other than in accordance with the instructions of such Obligor.
(c) From and after the delivery of the Activation Notice, each Obligor shall cause each and every bank at which any Obligor Account and Lock Box is located, including each Relationship Bank and each of the other banks at which any Obligor Account is located, to (i) deposit any checks, drafts or other similar items of payment received in any Lock Box directly into an Obligor Account, (ii) forward immediately, and in no event less frequently than once each Business Day, all amounts in the Obligor Accounts at such bank to the Concentration Account and (iii) commence, and continue each Business Day, the process of daily sweeps from each Obligor Account into the Concentration Account. Each Obligor shall (upon Holdings' receipt of an Activation Notice) cause the Concentration Account Bank to forward immediately all amounts received in the Concentration Account to the Collection Account through daily sweeps from such Concentration Account into the Collection Account.
(d) So long as no Event of Default has occurred and is continuing, Holdings may (i) amend SCHEDULE 1.7 to add or replace a Lock Box or Obligor Account or replace the Concentration Account; PROVIDED, HOWEVER, THAT (A) Agent shall have consented in writing to the opening of such account with the relevant bank and (B) prior to the time of the opening of such account or Lock Box, such bank and the applicable Obligor and/or Subsidiary thereof shall have executed and delivered to Agent a triparty blocked account agreement, in form and substance satisfactory to Agent and (ii) invest amounts maintained overnight in the Concentration Account in accordance with this Agreement in overnight deposits offered by the Concentration Account Bank.
(e) The Lock Boxes, Obligor Accounts, Disbursement Account and the Concentration Account shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Revolving Credit Loan and all other Obligations, and in which such Obligor or Subsidiary shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreement.
(iiif) Nothing contained herein All amounts deposited in the Collection Account shall be deemed received by Agent in accordance with SECTION 1.8 of the Agreement and shall be applied (and allocated) by Agent in accordance with SECTION 1.9 of the Agreement. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to limit or the Collection Account.
(g) Each Borrower may maintain, in its name, an account (the "DISBURSEMENT ACCOUNT") at a bank acceptable to expand any waiversAgent into which, covenants or indemnities Agent shall, from time to time, deposit proceeds of Revolving Credit Advances made pursuant to SECTION 1.1 for use by Borrowers solely in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into accordance with the Administrative Agentprovisions of SECTION 1.4.
Appears in 1 contract
Samples: Credit Agreement (Weider Nutrition International Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than (i) to the extent solely as a result of the gross negligence or willful misconduct of such Agent Agent, L/C Issuer or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgment). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder jurisdiction) or (ii) with respect to taxes, levies, imposts, deductions, charges or withholdings imposed by any Governmental Authority, or any liabilities with respect thereto, the indemnification liabilities that are Obligations for which shall be governed solely and exclusively by Section 1.13 of any Domestic Credit Partythis Agreement.
(ii) As between any Agent Agent, L/C Issuer and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, provided that in the case of any payment by any Agent or L/C Issuer under any Letter of Credit or guaranty thereof, such Agent or L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent Agent, L/C Issuer or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s, L/C Issuer’s or any Lender’s rights or powers hereunder or under the this Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer. ANNEX C (Section 1.8) to CREDIT AGREEMENT CASH MANAGEMENT SYSTEMS Each Borrower shall, including and shall cause its Subsidiaries to, establish and maintain the Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination Date, each Borrower shall (i) establish lock boxes ("Lock Boxes") at one or more of the banks set forth in Disclosure Schedule (3.19), and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, and (ii) deposit and cause its Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Master Standby Agreement Lock Box) into one or Master Documentary Agreement more bank accounts in such Borrower's name or any such Subsidiary's name (each a "Borrower Account" and collectively, the "Borrower Accounts") at a bank identified in Disclosure Schedule (3.19) (each, a "Relationship Bank"). On or before the Closing Date, each Borrower shall have established a concentration account in its name (each a "Concentration Account" and collectively, the "Concentration Accounts") at the bank or banks that shall be designated as the Concentration Account bank for each such Borrower in Disclosure Schedule (3.19) (each a "Concentration Account Bank" and collectively, the "Concentration Account Banks"), which banks shall be satisfactory to Agent.
(b) Each Borrower may maintain, in its name, an account (each a "Disbursement Account" and collectively, the "Disbursement Accounts") at a bank acceptable to Agent into which Agent shall, from time to time, deposit proceeds of Revolving Credit Advances made to such Borrower pursuant to Section 1.1 for use by such Borrower solely in accordance with the provisions of Section 1.4.
(c) On or before the Closing Date (or such later date as Agent shall consent to in writing), each Concentration Account Bank, each bank where a non-payroll Disbursement Account is maintained and all other Relationship Banks, shall have entered into tri-party blocked account agreements with Agent, for the benefit of itself and Lenders, and the applicable Borrower and Subsidiaries thereof, as applicable, in form and substance acceptable to Agent, which shall become operative on or prior to the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in the applicable Concentration Account are held by such bank as agent or bailee-in-possession for Agent, on behalf of itself and Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the Closing Date (A) with respect to banks at which a Borrower Account is maintained, such bank agrees to forward immediately all amounts in each Borrower Account to such Borrower's Concentration Account Bank and to commence the process of daily sweeps from such Borrower Account into the applicable Concentration Account and (B) with respect to each Concentration Account Bank, such bank agrees to immediately forward all amounts received in the applicable Concentration Account to the Collection Account through daily sweeps from such Concentration Account into the Collection Account.
(d) So long as no Default or Event of Default has occurred and is continuing, Borrowers may amend Disclosure Schedule (3.19) to add or replace a Relationship Bank, Lock Box or Borrower Account or to replace any Concentration Account or any Disbursement Account; provided, that (i) Agent shall have consented in writing in advance to the opening of such account or Lock Box with the Administrative relevant bank and (ii) prior to the time of the opening of such account or Lock Box, the applicable Borrower or its Subsidiaries thereof, as applicable, and such bank shall have executed and delivered to Agent a tri-party blocked account agreement, in form and substance satisfactory to Agent. Borrowers shall close any of their accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within thirty (30) days following notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within sixty (60) days following notice from Agent that the operating performance, funds transfer or availability procedures or performance with respect to accounts or Lock Boxes of the bank holding such accounts or Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(e) The Lock Boxes, Borrower Accounts, Disbursement Accounts and the Concentration Accounts shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which each Borrower and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreement.
(f) All amounts deposited in the Collection Account shall be deemed received by Agent in accordance with Section 1.10 and shall be applied (and allocated) by Agent in accordance with Section 1.11. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
(g) Each Borrower shall and shall cause its Affiliates, officers, employees, agents, directors or other Persons acting for or in concert with such Borrower (each a "Related Person") to (i) hold in trust for Agent, for the benefit of itself and Lenders, all checks, cash and other items of payment received by such Borrower or any such Related Person, and (ii) within one (1) Business Day after receipt by such Borrower or any such Related Person of any checks, cash or other items of payment, deposit the same into a Borrower Account of such Borrower. Each Borrower and each Related Person thereof acknowledges and agrees that all cash, checks or other items of payment constituting, proceeds of Collateral are the property of Agent and Lenders. All proceeds of the sale or other disposition of any Collateral, shall be deposited directly into the applicable Borrower Accounts.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, and all reasonable out-of-pocket costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counselfees) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit LEGAL_US_E # 82813718. 8 or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement; provided, however, that the foregoing clauses (A) through (H) shall not be construed to excuse the L/C Issuer for liability to Borrowers to the extent of any damages suffered by Borrowers that are caused by the L/C Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof; provided, further, the parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the L/C Issuer (as finally determined by a court of competent jurisdiction), the L/C Issuer shall be deemed to have exercised care in each such determination.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Samples: Senior Secured, Super Priority Debtor in Possession Credit Agreement (Milacron Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in this Article 9, the Agreement, Borrowers Borrower hereby agree to pay and agrees to protect, indemnify, pay and save the Operating Lender and its directors, officers, employees, agents and representatives harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ legal fees and allocated costs of internal counselexpenses) that any Agent or any Lender which the indemnitee may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereofissued by it, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the breach of the standards of reasonable care specified in the Uniform Customs, or where the Operating Lender would not be entitled to the foregoing indemnification under ISP98 or UCP600, in each case as stated on its face to be applicable to such Letter of Credit, or where such claim, demand, liability, damages, loss, cost, charge or expense arises from or relates to the gross negligence or willful wilful misconduct of such Agent or such Lender an indemnitee under this paragraph (as determined by a court of competent jurisdiction in a final, non-appealable judgmentjudgment of a court of competent jurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent the Borrower, on the one hand, and any Lender and Borrowersthe Operating Lender, Borrowers assume on the other hand, the Borrower assumes all risks of the acts and omissions of, or misuse of any Letter the Letters of Credit by beneficiariesissued hereunder by, the respective beneficiaries of any Letter such Letters of Credit. In furtherance and not in Credit and, without limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Operating Lender shall not be responsible for: :
(A) the form, validity, sufficiency, accuracy, genuineness invalidity or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency insufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; ;
(C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (EB) errors in interpretation of technical terms; ;
(FC) any loss or delay in the transmission or otherwise of any document required in order to make a payment drawing under any such Letter of Credit or guaranty thereof or of the proceeds thereof; and
(GD) the credit misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under any such Letter of Credit or guaranty thereofCredit; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, impair or prevent the vesting of any of any Agent’s or any the Operating Lender’s rights or powers hereunder hereunder. No action taken or omitted by the Operating Lender under or in connection with any Letter of Credit issued by it or the Agreementrelated certificates, if taken or omitted in good faith, shall put the Operating Lender under any resulting liability to the Borrower (provided that the Operating Lender acts in accordance with the standards of reasonable care specified in the Uniform Customs and otherwise as may be required under ISP98 or UCP600, in each case as stated on its face to be applicable to the respective Letter of Credit).
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers The Borrower agrees that neither the Operating Lender in favor respect of any L/C Issuer Letter of Credit, nor its officers, directors, employees or agents will assume liability for, or be responsible for, and the Borrower hereby indemnifies and holds harmless each such Person from any losses or claims resulting from, the following: (A) the use which may be made of any Letter of Credit; (B) any acts or omissions of the beneficiary of any Letter of Credit including the application of any payment made to such beneficiary; (C) the form, validity, sufficiency, correctness, genuineness or legal effect of any document or instrument relating to any Letter of Credit which on its face complies with requirements of the Letter of Credit, even if such document or instrument should in fact prove to be in any letter respect invalid, insufficient, inaccurate, fraudulent or forged; (D) the failure of credit applicationany document or instrument to bear any reference or adequate reference to any Letter of Credit; (E) any failure to note the amount of any draft on any Letter of Credit or on any related document or instrument; (F) any failure of the beneficiary of any Letter of Credit to meet the obligations of such beneficiary to the Borrower or any other Person other than the Operating Lender; (G) any errors, reimbursement agreement inaccuracies, omissions, interruptions or delays in transmission or delivery of any messages, directions or correspondence by mail, facsimile or otherwise, whether or not they are in cipher; any inaccuracies in the translation of any messages, directions or correspondence or for errors in the interpretation of any technical terms; (H) any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect; (I) acting in reliance upon any notice, consent, certificate, statement or other writing (which may be a bank wire, telex, facsimile or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into writing) appearing on its face to be in compliance with the terms and conditions of the Letter of Credit; or (J) any failure by the Operating Lender to make payment under any Letter of Credit as a result of any Law, control or restriction rightfully or wrongfully exercised or imposed by any domestic or foreign court or Administrative AgentBody or as a result of any other cause beyond the control of the Operating Lender or its officers, directors or employees or agents. This Section 9.1(g)(iii) will survive the termination of this Agreement; provided that nothing in this Agreement shall exonerate the Operating Lender for its gross negligence or wilful misconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction).
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless Agent each Agent L/C Issuer, and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of Agent, any Agent L/C Issuer or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of Agent, such Agent L/C Issuer or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between Agent, any Agent L/C Issuer and any Lender on the one hand and BorrowersBorrowers on the other hand, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any L/C Issuer or Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent or a L/C Issuer, as applicable, under any Letter of Credit or guaranty thereof, Agent or such Agent L/C Issuer, as the case may be, shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of Agent, any Agent L/C Issuer or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's L/C Issuer's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including an, a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with Agent. ANNEX C (Section 1.8) to CREDIT AGREEMENT CASH MANAGEMENT SYSTEM Each Credit Party shall, and shall cause its Subsidiaries to, establish and maintain the Administrative Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination Date, each Borrower shall (i) establish lock boxes ("Lock Boxes") or at Agent's discretion, blocked accounts ("Blocked Accounts") at one or more of the banks set forth in Disclosure Schedule (3.19), and shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, and (ii) deposit and cause its Subsidiaries to deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Lock Box) into one or more Blocked Accounts in such Borrower's name or any such Subsidiary's name and at a bank identified in Disclosure Schedule (3.19) (each, a "Relationship Bank"). On or before the Closing Date, each Borrower shall have established a concentration account in its name (each a "Concentration Account" and collectively, the "Concentration Accounts") at the bank or banks that shall be designated as the Concentration Account bank for each such Borrower in Disclosure Schedule (3.19) (each a "Concentration Account Bank" and collectively, the "Concentration Account Banks"), which banks shall be reasonably satisfactory to Agent.
(b) Each Borrower may maintain, in its name, an account (each a "Disbursement Account" and collectively, the "Disbursement Accounts") at a bank reasonably acceptable to Agent into which Agent shall, from time to time, deposit proceeds of Revolving Credit Advances and Swing Line Advances made to such Borrower pursuant to Section 1.1 for use by such Borrower solely in accordance with the provisions of Section 1.4.
(c) Except as provided in Clause (h) below, on or before the Closing Date (or such later date as Agent shall consent to in writing), each Concentration Account Bank, each bank where a Disbursement Account is maintained and all other Relationship Banks, shall have entered into tri-party blocked account agreements with Agent, for the benefit of itself and Lenders, and the applicable Borrower and Subsidiaries thereof, as applicable, in form and substance reasonably acceptable to Agent, which shall become operative on or prior to the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) all items of payment deposited in such account and proceeds thereof deposited in the applicable Concentration Account are held by such bank as agent or bailee-in-possession for Agent, on behalf of itself and Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) from and after the Closing Date (A) with respect to banks at which a Blocked Account is maintained, such bank agrees, from and after the receipt of a notice (an "Activation Notice") from Agent (which Activation Notice may be given by Agent at any time at which (1) a Default or Event of Default has occurred and is continuing, (2) Agent reasonably believes based upon information available to it that a Default or an Event of Default is likely to occur; (3) Agent reasonably believes that an event or circumstance that is likely to have a Material Adverse Effect has occurred, or (4) Agent reasonably has grounds to question the integrity of any Borrower's Cash Management Systems or any Borrower's compliance with the provisions of this Annex C or any other provisions of the Loan Documents to the extent related to such Cash Management Systems (any of the foregoing being referred to herein as an "Activation Event")), to forward immediately all amounts in each Blocked Account to such Borrower's Concentration Account Bank and to commence the process of daily sweeps from such Blocked Account into the applicable Concentration Account and (B) with respect to each Concentration Account Bank, such bank agrees from and after the receipt of an Activation Notice from Agent upon the occurrence of an Activation Event, to immediately forward all amounts received in the applicable Concentration Account to the Collection Account through daily sweeps from such Concentration Account into the Collection Account. From and after the date Agent has delivered an Activation Notice to any bank with respect to any Blocked Account(s). No Borrower shall, or shall cause or permit any Subsidiary thereof to, accumulate or maintain cash in Disbursement Accounts or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements.
(d) So long as no Default or Event of Default has occurred and is continuing, Borrowers may amend Disclosure Schedule (3.19) to add or replace a Relationship Bank, Lock Box or Blocked Account or to replace any Concentration Account or any Disbursement Account; provided, that (i) Agent shall have consented in writing in advance to the opening of such account or Lock Box with the relevant bank and (ii) prior to the time of the opening of such account or Lock Box, the applicable Borrower or its Subsidiaries, as applicable, and such bank shall have executed and delivered to Agent a tri-party blocked account agreement, in form and substance reasonably satisfactory to Agent. Borrowers shall close any of their accounts (and establish replacement accounts in accordance with the foregoing sentence) promptly and in any event within 30 days following notice from Agent that the creditworthiness of any bank holding an account is no longer acceptable in Agent's reasonable judgment, or as promptly as practicable and in any event within 60 days following notice from Agent that the operating performance, funds transfer or availability procedures or performance with respect to accounts or Lock Boxes of the bank holding such accounts or Agent's liability under any tri-party blocked account agreement with such bank is no longer acceptable in Agent's reasonable judgment.
(e) The Lock Boxes, Blocked Accounts, Disbursement Accounts and the Concentration Accounts shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which each Borrower and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and Lenders, pursuant to the Security Agreement.
(f) All amounts deposited in the Collection Account shall be deemed received by Agent in accordance with Section 1.10 and the GE Capital Fee Letter and shall be applied (and allocated) by Agent in accordance with Section 1.11. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
(g) Each Borrower shall and shall cause its Affiliates, officers, employees, agents, directors or other Persons acting for or in concert with such Borrower (each a "Related Person") to (i) hold in trust for Agent, for the benefit of itself and Lenders, all checks, cash and other items of payment received by such Borrower or any such Related Person, and (ii) except as otherwise provided in clause (h) below, within 2 Business Days after receipt by such Borrower or any such Related Person of any checks, cash or other items of payment, deposit the same into a Blocked Account of such Borrower. Each Borrower and each Related Person thereof acknowledges and agrees that all cash, checks or other items of payment constituting proceeds of Collateral are part of the Collateral. All proceeds of the sale or other disposition of any Collateral, shall be deposited directly into the applicable Blocked Accounts.
Appears in 1 contract
Samples: Credit Agreement (Coyne International Enterprises Corp)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers each Loan Party hereby agree jointly and severally agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counselcounsel without duplication) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any the L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authorityapplicable governmental authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s 's rights or powers hereunder or under the this Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any the L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such the L/C Issuer; provided that in the event of a conflict between the terms of this Agreement and any such application, including reimbursement agreement or similar document, the terms of this Agreement shall govern. [*] Portions of this exhibit have been omitted pursuant to a Master Standby Agreement or Master Documentary Agreement entered into confidential treatment request. An unredacted version of this exhibit has been filed separately with the Administrative AgentCommission.
Appears in 1 contract
Samples: Loan and Security Agreement (Salient Surgical Technologies, Inc.)
Indemnification; Nature of Lenders’ Duties. (ia) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers each Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each the Administrative Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which the Administrative Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (Ai) the issuance of any Letter of Credit or guaranty thereof, or (Bii) the failure of any the Administrative Agent or any Lender seeking indemnification or of any L/C Issuer Issuing Lender to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such the Administrative Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(iib) As between any the Administrative Agent and any Lender and the Borrowers, Borrowers assume each Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any the Administrative Agent nor any Lender shall be responsible forresponsible: (Ai) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (Ciii) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any the Administrative Agent under any Letter of Credit or guaranty thereof, such the Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (Div) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (Ev) for errors in interpretation of technical terms; (Fvi) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty guarantee thereof or of the proceeds thereof; (Gvii) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty guarantee thereof; and (Hviii) for any consequences arising from causes beyond the control of any the Administrative Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Administrative Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iiic) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers any Borrower in favor of any L/C Issuer Issuing Lender in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers any Borrower and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative AgentIssuing Lender.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, the Borrowers hereby agree to pay and to protect, indemnify, and save harmless the Administrative Agent, each Agent L/C Issuer and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any the Administrative Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance issuance, continuance or maintenance of or any draw or attempted draw under any Continuing Term Letter of Credit or guaranty thereof, or (B) the failure of any the Administrative Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Continuing Term Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender indemnified person (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any the Administrative Agent and any Lender and on the one hand and, on the other hand, the Borrowers, the Borrowers assume all risks of the acts and omissions of, or misuse of any Continuing Term Letter of Credit by beneficiariesby, beneficiaries of any Continuing Term Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any the Administrative Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Continuing Term Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; , (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Continuing Term Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; , (C) failure of the beneficiary of any Continuing Term Letter of Credit to comply fully with conditions required in order to demand payment under such Continuing Term Letter of Credit; provided, that in the case of any payment by any the Administrative Agent under any Continuing Term Letter of Credit or guaranty thereof, such the Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Continuing Term Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Continuing Term Letter of Credit or guaranty thereof; , (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; , (E) errors in interpretation of technical terms; , (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Continuing Term Letter of Credit or guaranty thereof or of the proceeds thereof; , (G) the credit of the proceeds of any drawing under any Continuing Term Letter of Credit or guaranty thereof; , and (H) any consequences arising from causes beyond the control of any the Administrative Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any the Administrative Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such any L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure DE JURE or de facto DE FACTO government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiariesby, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedPROVIDED, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Track N Trail Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, and all reasonable out-of-pocket costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counselfees) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent under any Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement; provided, however, that the foregoing clauses (A) through (H) shall not be construed to excuse the L/C Issuer for liability to Borrowers to the extent of any damages suffered by Borrowers that are caused by the L/C Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof; provided, further, the parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the L/C Issuer (as finally determined by a court of competent jurisdiction), the L/C Issuer shall be deemed to have exercised care in each such determination.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Samples: Senior Secured, Super Priority Debtor in Possession Credit Agreement (Milacron Inc)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and Borrowers, Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any Agent or such L/C Issuer, as the case may be, under any Letter of Credit or guaranty thereof, such Agent or any L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.. ANNEX C (SECTION 1.7)
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers U.S. Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any U.S. Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any U.S. L/C Issuer to honor a demand for payment under any U.S. Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersU.S. Borrower, Borrowers assume U.S. Borrower assumes all risks of the acts and omissions of, or misuse of any U.S. Letter of Credit by beneficiaries, of any U.S. Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any Agent nor any Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any U.S. Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any U.S. Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any U.S. Letter of Credit to comply fully with conditions required in order to demand payment under such U.S. Letter of Credit; provided, provided that in the case of any payment by any Agent under any U.S. Letter of Credit or guaranty thereof, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such U.S. Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such U.S. Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any U.S. Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any U.S. Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers U.S. Borrower in favor of any U.S. L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers U.S. Borrower and such U.S. L/C Issuer, including an Application and Agreement For Documentary Letter of Credit, a Master Documentary Agreement and a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Samsonite Corp/Fl)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the this Agreement, Borrowers the Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each the Administrative Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and reasonable allocated costs of internal counsel) that any the Administrative Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any the Administrative Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such the Administrative Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any the Administrative Agent and any Lender and Borrowersthe Borrower, Borrowers assume the Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit Credit, by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any the Administrative Agent nor any Lender or L/C Issuer shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided, that in the case of any payment by any the Administrative Agent under any Letter of Credit or guaranty thereof, such the Administrative Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) any consequences arising from causes beyond the control of any the Administrative Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any the Administrative Agent’s or any Lender’s rights or powers hereunder hereunder. Without limiting the foregoing, in no event shall the Administrative Agent, any Lender or under the Agreementany L/C Issuer be responsible for any special, indirect or consequential damages.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers the Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers the Borrower and such L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Rexnord Corp)
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in this Section 2.18, the Agreement, Borrowers Borrower hereby agree to pay and agrees to protect, indemnify, indemnify and save harmless each Agent the Agent, the Issuing Bank and each Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any Agent or any which the Agent, the Issuing Bank and each Lender may incur or be subject to as a consequence, direct or indirect, of (A1) the issuance of any Letter of Credit or guaranty thereofCredit, or (B2) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer the Issuing Bank to honor a demand for payment drawing under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authoritygovernmental authority, in each case other than except with respect to any such claim, demand, liability, damage, loss, cost, charge or expense, to the extent solely as a result of resulting from the Issuing Bank's gross negligence or willful misconduct of such Agent or such Lender (as determined by in a final judgment of a court of competent jurisdiction in or a finalsettlement tantamount to such formal decision. Without limiting the foregoing, non-appealable judgment). It the Issuing Bank shall have no obligation to ascertain whether the stated purpose of any requested Letter of Credit is understood permitted by this Agreement and agreed that, notwithstanding anything shall not be liable for the Borrower's use of a Letter of Credit issued pursuant to the contrary terms hereof in violation of the Borrower's covenants contained herein. As among the Borrower, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent the Agent, the Lenders and any Lender and Borrowersthe Issuing Bank, Borrowers assume the Borrower assumes all risks of the acts and omissions of, or misuse of any Letter the Letters of Credit issued by beneficiaries, the Issuing Bank by the respective beneficiaries of any Letter such Letters of Credit. In furtherance and not in limitation of the foregoing, to neither the fullest extent permitted by lawAgent, neither any Agent the Issuing Bank nor any Lender (absent its own gross negligence or willful misconduct as determined in a final order of a court of competent jurisdiction or in a settlement agreement tant amount to such final order) shall be responsible for: (A1) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued submitted by any party in connection with the application for and issuance of any Letter such Letters of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B2) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reason; (C3) failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to demand payment under draw upon such Letter of Credit; provided, that in unless (a) such failure is material and substantive, and (b) the case of any Issuing Bank's payment by any Agent under any on such Letter of Credit or guaranty thereofconstitutes bad faith, such Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as determined in a final judgment by a court of competent jurisdiction in or a final, non-appealable judgment) in determining that the demand for payment under settlement tantamount to such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereofformal decision; (D4) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E5) errors in interpretation of technical terms; (F6) any loss or delay in the transmission or otherwise of any document required in order to make a payment drawing under any such Letter of Credit or guaranty thereof or of the proceeds thereof; (G7) the credit of misapplication by the proceeds beneficiary of any drawing under any such Letter of Credit Credit; or guaranty thereof; and (H) 8) any consequences arising from causes beyond the control of any Agent or any Lenderthe Issuing Bank. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s or any Lender’s the Issuing Bank's rights or powers hereunder. In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by the Issuing Bank under or in connection with the Letters of Credit issued by it or the related certificates, if (i) taken or omitted in good faith and without gross negligence or willful misconduct as determined in a final order of a court of competent jurisdiction or in a settlement agreement tantamount to such final order, and (ii) substantially in accordance with the terms t hereof, shall not put the Issuing Bank under any resulting liability to the Borrower or the Lender Group. As between the Agent, the Issuing Bank and Lenders, the Issuing Bank agrees that it will take the same care as it takes in connection with letters of credit in which it alone is interested. However, neither the Issuing Bank nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them hereunder or under in connection herewith except for its or their own gross negligence or willful misconduct as determined in a final judgement by a court of competent jurisdiction or a settlement tantamount to such formal decision. With respect to its Pro Rata Share of the Advances and Letter of Credit Liability (if any), the Issuing Bank shall have the same rights and powers hereunder as any Lender and may exercise the same as though it were not the Issuing Bank. The Issuing Bank may accept deposits from, lend money to and generally engage in any kind of banking or trust business with any Borrower and any Subsidiaries or Affiliates of the Borrower as if the Issuing Bank were not the Issuing Bank unless otherwise prohibited by the terms of this Agreement.
(iii) Nothing contained herein . It is expressly understood and agreed that the obligations of the Issuing Bank hereunder are only those expressly set forth in this Agreement and that the Issuing Bank shall be deemed entitled to limit assume that no Event of Default or Default has occurred and is continuing unless the Issuing Bank has actual knowledge of such fact or has received written notice from a Lender or the Borrower that such Lender or the Borrower considers that an Event of Default or Default has occurred and is continuing and specifying the nature thereof. So long as the Issuing Bank shall be entitled, pursuant to the immediately preceding paragraph, to assume that no Event of Default or Default has occurred and is continuing, the Issuing Bank shall be entitled to use its discretion with respect to exercising or refraining from exercising any rights that may be vested in it by, or with respect to taking or refraining from taking any action or actions that it may be able to take under or in respect of, this Agreement. The Issuing Bank shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate, warranty or other paper or instrument reasonably believed in good faith by it to be genuine or authentic or to expand be signed by the proper party or parties, or with respect to anything that it may do or refrain from doing in good faith and in the reasonable exercise of its judgment. Each Lender agrees to indemnify the Issuing Bank (to the extent not reimbursed by the Borrower), ratably according to its Pro Rata Share, from and against any waiversand all liabilities, covenants obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or indemnities made by Borrowers in favor disbursements of any L/C Issuer kind or nature whatsoever that may be imposed on, incurred by or asserted against the Issuing Bank in any letter way relating to or arising out of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers and such L/C Issuer, including a Master Standby this Agreement or Master Documentary Agreement entered into with any action taken or omitted by the Administrative AgentIssuing Bank under this Agreement, provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Issuing Bank's gross negligence or willful misconduct as determined in a final judgment by a court of competent jurisdiction or a settlement tantamount to such formal decision.
Appears in 1 contract
Samples: Loan Agreement (Edo Corp)
Indemnification; Nature of Lenders’ Duties. (ia) In addition to amounts payable as elsewhere provided in the this Credit Agreement, the Borrowers hereby agree on a joint and several basis to pay and to protect, indemnify, and save harmless each the Co-Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any the Co-Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (Ai) the issuance issuance, extension or renewal of any Letter of Credit or guaranty thereof, or (Bii) the failure of any the Co-Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of such the Co-Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(iib) As between any the Co-Agent and any Lender and the Borrowers, the Borrowers assume all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiariesby, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither any no Agent nor any or Lender shall be responsible for: (Ai) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (Bii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (Ciii) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedPROVIDED, that in the case of any payment by any the Co-Agent under any Letter of Credit or guaranty thereof, such the Co-Agent shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (Div) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (Evi) errors in interpretation of technical terms; (Fv) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (Gvii) the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (Hviii) any consequences arising from causes beyond the control of any the Co-Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any the Co-Agent’s 's or any Lender’s 's rights or powers hereunder or under the this Credit Agreement.
(iiic) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by the Borrowers in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among the Borrowers and such the L/C Issuer, including a Master Standby Agreement or Master Documentary Agreement entered into with the Administrative Agent.
Appears in 1 contract
Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, Borrowers Borrower hereby agree agrees to pay and to protect, indemnify, and save harmless each Agent and each Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ ' fees and allocated costs of internal counsel) that any which Agent or any Lender may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of any Agent or any Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of resulting from the gross negligence or willful misconduct of such Agent or such Lender (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction). It is understood and agreed that, notwithstanding anything to the contrary herein, no Foreign Credit Party shall have any obligation hereunder with respect to any indemnification liabilities that are Obligations of any Domestic Credit Party.
(ii) As between any Agent and any Lender and BorrowersBorrower, Borrowers assume Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries, beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, law neither any Agent nor any Lender shall be responsible forresponsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that which may prove to be invalid or ineffective for any reasonreason other than, only in the case of a purported transfer of the entire Letter of Credit and not a right to draw or receive payment thereunder, the fact that the instrument purports to transfer a Letter of Credit which states on its face that it is non-transferable; (C) for failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; providedprovided that, that in the case of any payment by any Agent or L/C Issuer under any Letter of Credit or guaranty thereof, Agent or such Agent L/C Issuer, as the case may be, shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction in a final, non-appealable judgmentjurisdiction) in determining that the demand for payment under such Letter of Credit or guaranty thereof complies on its face with any applicable requirements for a demand for payment under such Letter of Credit or guaranty thereof; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or guaranty thereof or of the proceeds thereof; (G) for the credit of the proceeds of any drawing under any Letter of Credit or guaranty thereof; and (H) for any consequences arising from causes beyond the control of any Agent or any Lender. None of the above shall affect, impair, or prevent the vesting of any of any Agent’s 's or any Lender’s 's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand any waivers, covenants or indemnities made by Borrowers Borrower in favor of any L/C Issuer in any letter of credit application, reimbursement agreement or similar document, instrument or agreement between or among Borrowers Borrower and such L/C Issuer.
(iv) Nothing contained herein shall waive, including release or limit the Borrower's rights, claims and remedies as against any beneficiary of a Master Standby Agreement Letter of Credit. ANNEX C (Section 2.1(a)) to CREDIT AGREEMENT SCHEDULE OF ADDITIONAL CLOSING DOCUMENTS In addition to, and not in limitation of, the conditions described in Section 2.1 of the Agreement, pursuant to Section 2.1(a), the following items must be received by Agent in form and substance satisfactory to Agent on or Master Documentary Agreement entered into with prior to the Administrative Agent.Closing Date (each capitalized term used but not otherwise defined herein shall have the meaning ascribed thereto in Annex A to the Agreement):
Appears in 1 contract
