Letter of Credit Obligations Absolute. (i) The obligation of the Company to reimburse the Issuing Lender as provided hereunder in respect of drawings under Letters of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunder, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoing, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are not in strict compliance with the terms of such Letter of Credit. (ii) Any action, inaction or omission on the part of the Issuing Lender or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New York.
Appears in 2 contracts
Samples: Credit Agreement (Symbol Technologies Inc), Credit Agreement (Pall Corp)
Letter of Credit Obligations Absolute. (i) The obligation of the Company Borrower to reimburse the Issuing Lender as provided hereunder in respect of Issuer for drawings made under Letters of Credit shall rank pari passu with issued for the obligation account of the Company Borrower and the Lenders' obligation to repay the Revolving Credit Loans hereunder, honor their participations purchased therein shall be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters any Letter of Credit or any related documentdocument submitted by any party in connection with the application for and issuance of a Letter of Credit, even though such document shall if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(b) The form, validity, sufficiency, accuracy, genuineness or legal effect of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reason;
(c) The existence of any claim, set-off, defense or other right which the Borrower or any dispute between Subsidiary or among Affiliate of the Company, the Borrower may have at any time against a beneficiary or any transferee of any Letter of Credit, Credit (or any financial institution Persons or entities for whom any such beneficiary or transferee may be acting), any Lender or any other party to Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between the Borrower or any of its Subsidiaries and Affiliates and the beneficiary for which any such Letter of Credit may be transferred. The Issuing was procured); provided that nothing in this Section shall affect the right of the Borrower to seek relief against any beneficiary, transferee, Lender may accept or pay any draft other Person in any action or proceeding or to bring a counterclaim in any suit involving such Persons;
(d) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with any respect;
(e) Payment by the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment Issuer under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.;
(iif) Errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise;
(g) Any action, inaction loss or omission on delay in the part transmission or otherwise of any document or draft required in order to make a payment under a Letter of Credit;
(h) Any other circumstance or happening whatsoever which is similar to any of the Issuing Lender foregoing; or
(i) the fact that a Default or any an Event of Default shall have occurred and be continuing. Nothing in this Section 3.18 shall prevent an action against the Issuer for its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by in honoring drafts under the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkCredit.
Appears in 2 contracts
Samples: Credit Agreement (Ironton Iron Inc), Credit Agreement (Intermet Corp)
Letter of Credit Obligations Absolute. (i) The obligation of the Company to reimburse the Issuing Lender as provided hereunder in respect of Issuer for drawings made under Letters of Credit shall rank pari passu with issued for the obligation account of the Company and the Lenders' obligation to repay the Revolving Credit Loans hereunder, honor their participations purchased therein shall be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters any Letter of Credit or any related documentdocument submitted by any party in connection with the application for and issuance of a Letter of Credit, even though such document shall if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(b) The form, validity, sufficiency, accuracy, genuineness or legal effect of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reason;
(c) The existence of any claim, set-off, defense or other right which the Company or any dispute between Subsidiary or among Affiliate of the Company, the Company may have at any time against a beneficiary or any transferee of any Letter of Credit, Credit (or any financial institution Persons or entities for whom any such beneficiary or transferee may be acting), any Lender or any other party to Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between the Company or any of its Subsidiaries and Affiliates and the beneficiary for which any such Letter of Credit may be transferred. The Issuing was procured); provided that nothing in this Section 2.06 shall affect the right of the Company to seek relief against any beneficiary, transferee, Lender may accept or pay any draft other Person in any action or proceeding or to bring a counterclaim in any suit involving such Persons;
(d) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with any respect;
(e) Payment by the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment Issuer under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.;
(iif) Errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise;
(g) Any action, inaction loss or omission on delay in the part transmission or otherwise of any document or draft required in order to make a payment under a Letter of Credit;
(h) Any other circumstance or happening whatsoever which is similar to any of the Issuing Lender foregoing; or
(i) the fact that a Default or any an Event of Default shall have occurred and be continuing. Nothing in this Section 2.06 shall prevent an action against the Issuer for its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by in honoring drafts under the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkCredit.
Appears in 2 contracts
Samples: Letter of Credit Facility Agreement (Intermet Corp), Letter of Credit Facility Agreement (Ironton Iron Inc)
Letter of Credit Obligations Absolute. (i) The obligation of Borrower's obligations to make payments to the Company Bank in order to reimburse payments by the Issuing Lender as provided hereunder in respect of drawings under Bank on Letters of Credit as provided above shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunderbe absolute and irrevocable, and shall be absolute performed strictly in accordance with the terms of this Agreement and unconditional each Letter of Credit Agreement, under any and all circumstances subject to subsection whatsoever, and irrespective of:
(ii1) below. Without limiting the generality any lack of the foregoing, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters any Letter of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forgedLoan Document, or any dispute between term or among provision therein;
(2) any amendment or waiver of or any consent to departure from all or any of the Companyprovisions of any Letter of Credit or any Loan Document to which the Bank is not a party;
(3) the existence of any claim, setoff; defense or other right that Borrower or any other party guaranteeing, or otherwise obligated with, Borrower, any Subsidiary or other Affiliate thereof or any other person may at any time have against the beneficiary of under any Letter of Credit, the Bank or any financial institution other Person, whether in connection with this Agreement, any other Loan Document or any other related or unrelated agreement or transaction;
(4) any draft or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears proving to be regular forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; and
(5) any other act or omission to act or delay of any kind of the Bank, or any other person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this section, constitute a legal or equitable discharge of Borrower's obligations hereunder. Notwithstanding the foregoing, it is expressly understood and agreed that Borrower has not waived any rights it may have or be entitled to assert in the event of the Bank's gross negligence or willful misconduct (other than any claim seeking consequential damages, claims in respect of which are hereby waived by Borrower). It is understood that the Bank may accept documents that appear on its face, and appears on its their face to be in substantial compliance with the terms of the Letter of Creditorder, without responsibility for the validity or sufficiency further investigation, regardless of any signature notices or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference information to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the rightcontrary and, in its sole discretion, to decline to accept making any documents and to decline to making payment under any Letter of Credit if (i) the Bank's exclusive reliance on the documents presented are not in strict compliance with to it under such Letter of Credit as to any and all matters set forth therein, including reliance on the terms amount of any drafts presented under such Letter of Credit.
(ii) Any action, inaction whether or omission on not the part of the Issuing Lender or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability amount due to the Company in the absence of beneficiary thereunder equals (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (ybut does not exceed) the failure by the Issuing Lender to pay under a Letter amount of Credit after presentation of a such draft and documents strictly complying with whether or not any document presented pursuant to such Letter of Credit unless proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance in any immaterial respect of the Issuing Lender is prohibited from making documents presented under such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters Letter of Credit issued hereunder willwith the terms thereof shall, except to the extent otherwise expressly provided hereunderin each case, be governed by the UCP deemed not to the extent applicable and not inconsistent with the laws constitute willful misconduct or gross negligence of the State of New YorkBank.
Appears in 1 contract
Samples: Credit Agreement (Dataram Corp)
Letter of Credit Obligations Absolute. (i) The obligation With regard to each Letter of Credit, the Company obligations of Borrower to reimburse the Issuing Lender as provided hereunder in respect Bank under this Loan Agreement, any Letter of drawings under Letters Credit Document and any other agreement or instrument relating to any Letter of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunderbe unconditional and irrevocable, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) below. Without limiting paid strictly in accordance with the generality terms of the foregoingthis Loan Agreement, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters such Letter of Credit shall not be subject to Document and such other agreement or instrument under all circumstances, including without limitation the following circumstances:
(1) any defense based on the non-application or misapplication by the beneficiary lack of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related documentthis Loan Agreement, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay Document, any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal other agreement or extension thereof then instrument relating thereto (this Loan Agreement and all of the other foregoing being, collectively, the "L/C Related Documents");
(2) any change in effectthe time, and is manner or place of payment of, or in substantial compliance any other term of, all or any of the obligations of Borrower in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;
(3) the existence of any claim, set-off, defense or other right that Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), Bank or any other person, whether in connection with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor transactions contemplated thereby or any of its correspondents nor other unrelated transaction;
(4) any Lender shall be responsible, as to statement or any other document presented under a Letter of Credit which appears proving to be regular on its faceforged, and appears on its face to be fraudulent, invalid or insufficient in substantial compliance with the terms of the Letter of Credit, for the validity any respect or sufficiency of any signature statement therein being untrue or endorsement, for delay inaccurate in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making respect;
(5) payment by Bank under any a Letter of Credit if the documents presented are against presentation of a draft or certificate that does not in strict compliance strictly comply with the terms of such Letter of Credit.;
(ii6) Any actionany exchange, inaction release or omission on the part non-perfection of any Collateral, or any release or amendment or waiver of or consent to departure from any loan document; or
(7) any other circumstance or happening whatsoever, whether or not similar to any of the Issuing Lender foregoing, including without limitation any other circumstance that might otherwise constitute a defense available to, or a discharge of, Borrower or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkGuarantor.
Appears in 1 contract
Samples: Revolving Credit Loan and Security Agreement (Deer Valley Corp)
Letter of Credit Obligations Absolute. (i) The obligation of the Company each Account Party to reimburse the Issuing Lender as provided hereunder in respect of Bank for drawings made under Letters of Credit shall rank pari passu with issued for the obligation account of the Company Account Party and the Lenders' obligation to repay the Revolving Credit Loans hereunder, honor their participations purchased therein shall be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which the Borrower or any financial institution Subsidiary or other party to which Affiliate of the Borrower may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be transferred. The Issuing acting), any Lender may accept or pay any draft other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between the Borrower or any of its Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit was procured);
(c) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with the terms and conditions of such Letter of Credit. Furthermore, neither any respect;
(d) Payment by the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment Bank under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.;
(iie) Any action, inaction other circumstance or omission on the part happening whatsoever which is similar to any of the Issuing Lender foregoing; or
(f) the fact that a Default or any an Event of its correspondents under or Default shall have occurred and be continuing. Nothing in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, this Section 3.17 shall be binding upon the Company and shall not place prevent an action against the Issuing Lender or any of Bank for its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by in honoring drafts under the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkCredit.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation of the Company TIMET to reimburse the Issuing Lender as provided hereunder in respect of drawings Bank for each drawing under Letters each Letter of Credit shall rank pari passu with the obligation of the Company and to repay the Revolving Credit Loans hereundereach Reimbursement Obligation shall be absolute, unconditional, and irrevocable, and shall be absolute paid strictly in accordance with the terms of this Agreement and unconditional under any and all circumstances subject to subsection (ii) below. Without limiting the generality reimbursement agreement executed by TIMET in favor of the foregoingIssuing Bank under all circumstances, including the obligation following:
(a) any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, this Agreement, or any financial institution other Loan Document;
(b) the existence of any claim, counterclaim, setoff, defense, or other party to which right that TIMET or any Letter of Credit Subsidiary or Affiliate may be transferred. The Issuing Lender may accept have at any time against any beneficiary or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date transferee of such Letter of Credit (or any renewal Person for whom any such beneficiary or extension thereof then any such transferee may be acting), the Issuing Bank, or any other Person, whether in effectconnection with this Agreement, and the transactions contemplated hereby, or by such Letter of Credit (or any agreement or instrument relating thereto), or any unrelated transaction;
(c) any draft, demand, certificate, or other document presented under such Letter of Credit proves to be forged, fraudulent, invalid, or insufficient in any respect, or any statement therein is untrue or inaccurate in substantial compliance with any respect;
(d) any loss or delay in the terms and conditions transmission or other presentation or delivery of any document required in order to make a drawing under such Letter of Credit. Furthermore, neither ;
(e) any payment by the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented Bank under a such Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms against presentation of the Letter of Credit, for the validity a draft or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are certificate that does not in strict compliance comply strictly with the terms of such Letter of Credit.;
(iif) Any action, inaction or omission on the part of any payment made by the Issuing Lender Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver, or other representative of or successor to any beneficiary or any transferee of its correspondents under or such Letter of Credit, including any arising in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender proceeding under any liability insolvency case or proceeding, except to the Company in the absence of (x) extent such payment constitutes gross negligence or willful misconduct by the Issuing Lender Bank; or
(g) any other circumstance or its correspondents happening whatsoever, whether or (y) not similar to any of the failure by foregoing, including any other circumstance that otherwise might constitute a defense available to, or a discharge of, TIMET or any Subsidiary or Affiliate. Nothing contained in this Section 3.12 of this Agreement shall be deemed to constitute a waiver of any remedies of TIMET against the Issuing Lender to pay under a beneficiary of any Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkCredit.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation obligations of the Company Borrower under this Agreement, any Letter of Credit Document and any other agreement or instrument relating to reimburse the Issuing Lender as provided hereunder in respect of drawings under Letters any Letter of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunderbe unconditional and irrevocable, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) below. Without limiting paid strictly in accordance with the generality terms of the foregoingthis Agreement, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters such Letter of Credit shall not be subject to Document and such other agreement or instrument under all circumstances, including without limitation the following circumstances:
(i) any defense based on the non-application or misapplication by the beneficiary lack of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related documentthis Agreement, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay Document, any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal other agreement or extension thereof then instrument relating thereto (this Agreement and all of the other foregoing being, collectively, the “L/C Related Documents”);
(ii) any change in effectthe time, and is manner or place of payment of, or in substantial compliance any other term of, all or any of the obligations of Borrower in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right that Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), Bank or any other Person, whether in connection with the terms and conditions of such Letter of Credit. Furthermore, neither transactions contemplated by the Issuing Lender nor L/C Related Documents or any of its correspondents nor unrelated transaction;
(iv) any Lender shall be responsible, as to statement or any other document presented under a Letter of Credit which appears proving to be regular on its faceforged, and appears on its face to be fraudulent, invalid or insufficient in substantial compliance with the terms of the Letter of Credit, for the validity any respect or sufficiency of any signature statement therein being untrue or endorsement, for delay inaccurate in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making respect;
(v) payment by Bank under any a Letter of Credit if the documents presented are against presentation of a draft or certificate that does not in strict compliance strictly comply with the terms of such Letter of Credit.;
(iivi) Any actionany exchange, inaction release or omission on the part non-perfection of any Collateral, or any release or amendment or waiver of or consent to departure from any Loan Document; or
(vii) any other circumstance or happening whatsoever, whether or not similar to any of the Issuing Lender foregoing, including without limitation any other circumstance that might otherwise constitute a defense available to, or a discharge of, Borrower or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkGuarantor.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation of the Company to reimburse the Issuing Lender as provided hereunder in respect of drawings under Letters of Credit shall rank pari passu PARI PASSU with the obligation of the Company to repay the Revolving Credit Loans hereunder, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoing, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the such Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the any Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the any Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making make payment under any Letter of Credit if the documents presented are not in strict compliance with the terms of such Letter of Credit.
(ii) Any action, inaction or omission on the part of the Issuing Lender or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New York.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation of the Company Tripwire to reimburse the Issuing Lender as provided hereunder in respect of drawings Bank for each drawing under Letters each Letter of Credit shall rank pari passu with the obligation of the Company and to repay the Revolving Credit Loans hereundereach Reimbursement Obligation shall be absolute, unconditional, and irrevocable, and shall be absolute paid strictly in accordance with the terms of this Agreement and unconditional the Letter of Credit Reimbursement Agreement under all circumstances, including the following:
(a) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
(b) the existence of any claim, counterclaim, setoff, defense, or other right that Tripwire may have at any time against any beneficiary of such Letter of Credit, or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuing Bank, or any other Person, whether in connection with this Agreement, the transactions contemplated by this Agreement, or by such Letter of Credit (or any agreement or instrument relating to such Letter of Credit), or any unrelated transaction;
(c) any draft, demand, certificate, or other document presented under such Letter of Credit proves to be forged, fraudulent, invalid, or insufficient in any respect, or any statement in any such draft, demand, certificate, or other document is untrue or inaccurate in any respect;
(d) any loss or delay in the transmission or other presentation or delivery of any document required in order to make a drawing under such Letter of Credit;
(e) any payment by the Issuing Bank under such Letter of Credit against presentation of a draft or certificate that complies in all material respect with, but does not comply strictly with, the terms of such Letter of Credit;
(f) any payment made by the Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver, or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any payment arising in connection with any proceeding under any and all circumstances subject insolvency case or proceeding; or
(g) any other circumstance or happening, whether or not similar to subsection (ii) below. Without limiting the generality any of the foregoing, the obligation including any other circumstance that otherwise might constitute a defense available to, or a discharge of, Tripwire. Nothing contained in this Section 4.11 of the Company this Agreement shall be deemed to reimburse constitute a waiver of (i) any claims of Tripwire against the Issuing Lender in respect Bank arising from its gross negligence or willful misconduct or (ii) any remedies of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, Tripwire against the beneficiary of any Letter of Credit, or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are not in strict compliance with the terms of such Letter of Credit.
(ii) Any action, inaction or omission on the part of the Issuing Lender or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New York.
Appears in 1 contract
Samples: Credit Agreement (Tripwire Inc)
Letter of Credit Obligations Absolute. (i) The obligation of the Company Borrower to reimburse the Issuing Lender as provided hereunder in respect of Agent for drawings made under Letters of Credit issued for the account of Borrower and the Lenders' obligation to honor their participations purchased therein shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunder, be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which Borrower or any financial institution Subsidiary or other party to which Affiliate of Borrower may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be transferred. The Issuing acting), any Lender may accept or pay any draft other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between Borrower or any of its Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit was procured); provided that nothing in this Section shall affect the right of Borrower to seek relief against any beneficiary, transferee, Lender or any other Person in any action or proceeding or to bring a counterclaim in any suit involving such Persons;
(c) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with any respect;
(d) Payment by the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment Agent under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.;
(iie) Any action, inaction other circumstance or omission on the part happening whatsoever which is similar to any of the Issuing Lender foregoing; or
(f) the fact that a Default or any an Event of Default shall have occurred and be continuing. Nothing in this Section 3.16 shall prevent an action against the Agent for its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by in honoring drafts under the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkCredit.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation of the Company Borrower to reimburse the Issuing Lender as provided hereunder in respect of Agent for drawings made under Letters of Credit issued for the account of Borrower and the Lenders' obligation to honor their participations purchased therein shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunder, be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which Borrower or any financial institution Subsidiary or other party to which Affiliate of Borrower may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be transferred. The Issuing acting), any Lender may accept or pay any draft other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between Borrower or any of its Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit was procured); provided that nothing in this Section shall affect the right of Borrower to seek relief against any beneficiary, transferee, Lender or any other Person in any action or proceeding or to bring a counterclaim in any suit involving such Persons;
(c) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with any respect;
(d) Payment by the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment Agent under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.;
(iie) Any action, inaction other circumstance or omission on the part happening whatsoever which is similar to any of the Issuing Lender or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of foregoing; or
(x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (yf) the failure by the Issuing Lender to pay under fact that a Letter Default or an Event of Credit after presentation of a draft Default shall have occurred and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New Yorkcontinuing.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation of the Company Borrower to reimburse the Issuing Lender Agent as provided hereunder in respect of drawings or payments under Letters of Credit shall rank pari passu with the obligation of the Company Borrower to repay the Revolving Credit Loans hereunder, hereunder and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) belowcircumstances. Without limiting the generality of the foregoing, the obligation of the Company Borrower to reimburse the Issuing Lender Agent in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing payment or the legality, validity, regularity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the CompanyBorrower, the beneficiary of any Letter of Credit, Credit or any financial financing institution or other party to which any Letter of Credit may be transferred. The Issuing Lender Agent may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry expiration date of such the Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with conforms to the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender Agent nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with conform to the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are not in strict compliance with the terms of such Letter of Credit.
(ii) Any action, inaction or omission on the part of the Issuing Lender Agent or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company Borrower and shall not place the Issuing Lender Agent or any of its correspondents or any Lender under any liability to the Company Borrower, in the absence of (xi) gross negligence or 23 willful misconduct by the Issuing Lender Agent or its correspondents or (yii) the failure by the Issuing Lender Agent to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court orderCredit. The Issuing LenderAgent's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable Uniform Customs and not inconsistent with the laws Practice for Documentary Credits (1993 Revision), International Chamber of the State of New YorkCommerce, Publication No. 500, and any subsequent revisions thereof.
Appears in 1 contract
Samples: Revolving Credit Agreement (Genovese Drug Stores Inc)
Letter of Credit Obligations Absolute. (i) The obligation of the Company Companies to reimburse the Issuing Lender as provided hereunder in respect of drawings under Letters of Credit shall rank pari passu PARI PASSU with the obligation of the Company Companies to repay the Revolving Credit Loans hereunder, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) belowcircumstances. Without limiting the generality of the foregoing, the obligation of the Company Companies to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the CompanyCompanies, the beneficiary of any Letter of Credit, Credit or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are not in strict compliance with the terms of such Letter of Credit.
(ii) Any action, inaction or omission on the part of the Issuing Lender or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company Companies and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company Companies in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided therein or hereunder, be governed by the UCP to the extent applicable Uniform Customs and not inconsistent with the laws Practice for Documentary Credits (1993 Revision), International Chamber of the State of New YorkCommerce, Publication No. 500, and any subsequent revisions thereof.
Appears in 1 contract
Samples: Credit Agreement (Aceto Corp)
Letter of Credit Obligations Absolute. (i) The obligation of the Company Contran to reimburse the Issuing Lender as provided hereunder in respect of drawings L/C Issuer for each drawing under Letters each Letter of Credit shall rank pari passu with the obligation of the Company and to repay the Revolving Credit Loans hereundereach Reimbursement Obligation shall be absolute, unconditional, and irrevocable, and shall be absolute paid strictly in accordance with the terms of this Agreement and unconditional the Issuer Documents under all circumstances, including the following:
(a) any and all circumstances subject to subsection (ii) below. Without limiting the generality lack of the foregoing, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, any Issuer Document, this Agreement, or any financial institution other Loan Document;
(b) the existence of any claim, counterclaim, setoff, defense, or other party to which right that Contran or any Letter of Credit Affiliate has or may be transferred. The Issuing Lender may accept have at any time against any beneficiary or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date transferee of such Letter of Credit (or any renewal Person for whom any such beneficiary or extension thereof then any such transferee may be acting), the L/C Issuer, or any other Person, whether in effectconnection with this Agreement, and the transactions contemplated hereby, or by such Letter of Credit (or any agreement or instrument relating thereto), or any unrelated transaction;
(c) any draft, demand, certificate, or other document presented under such Letter of Credit proves to be forged, fraudulent, invalid, or insufficient in any respect, or any statement therein is untrue or inaccurate in substantial compliance with any respect;
(d) any loss or delay in the terms and conditions transmission (or otherwise) of any document required in order to make a drawing under such Letter of Credit. Furthermore, neither ;
(e) any payment by the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented L/C Issuer under a or in connection with such Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms against presentation of the Letter of Credit, for the validity a draft or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are certificate that does not in strict compliance comply strictly with the terms of such Letter of Credit.;
(iif) Any actionany payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, inaction debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver, or omission on the part other representative of the Issuing Lender or successor to any beneficiary or any transferee of its correspondents under or such Letter of Credit, including any arising in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender proceeding under any liability Debtor Relief Law, except to the Company in the absence of (x) extent such payment constitutes gross negligence or willful misconduct by the Issuing Lender L/C Issuer; or
(g) any other circumstance or its correspondents occurrence whatsoever, whether or (y) not similar to any of the failure by the Issuing Lender to pay under foregoing, including any other circumstance that otherwise might constitute a defense available to, or a discharge of, Contran or any Affiliate of Contran. Contran promptly shall examine a copy of each Letter of Credit after presentation and each amendment thereto that is delivered to Contran and, in the event of any claim of noncompliance with Contran’s instructions or other irregularity, Contran promptly shall notify the L/C Issuer. Contran conclusively shall be deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as specified in the preceding sentence. Nothing contained in this Section 3.13 of this Agreement shall be deemed to constitute a draft and documents strictly complying with such waiver of any remedies of Contran against the beneficiary of any Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkCredit.
Appears in 1 contract
Samples: Credit Agreement (Contran Corp)
Letter of Credit Obligations Absolute. (i) The obligation With regard to each Letter -------------------------------------- of Credit, the Company obligations of Borrower to reimburse the Issuing Lender as provided hereunder in respect Bank under this Loan Agreement, any Letter of drawings under Letters Credit Document and any other agreement or instrument relating to any Letter of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunderbe unconditional and irrevocable, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) below. Without limiting paid strictly in accordance with the generality terms of the foregoingthis Loan Agreement, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters such Letter of Credit shall not be subject to Document and such other agreement or instrument under all circumstances, including without limitation the following circumstances:
(1) any defense based on the non-application or misapplication by the beneficiary lack of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related documentthis Loan Agreement, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay Document, any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal other agreement or extension thereof then instrument relating thereto (this Loan Agreement and all of the other foregoing being, collectively, the "L/C Related Documents");
(2) any change in effectthe time, and is manner or place of payment of, or in substantial compliance any other term of, all or any of the obligations of Borrower in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;
(3) the existence of any claim, set-off, defense or other right that Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), Bank or any other person, whether in connection with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor transactions contemplated thereby or any of its correspondents nor other unrelated transaction;
(4) any Lender shall be responsible, as to statement or any other document presented under a Letter of Credit which appears proving to be regular on its faceforged, and appears on its face to be fraudulent, invalid or insufficient in substantial compliance with the terms of the Letter of Credit, for the validity any respect or sufficiency of any signature statement therein being untrue or endorsement, for delay inaccurate in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making respect;
(5) payment by Bank under any a Letter of Credit if the documents presented are against presentation of a draft or certificate that does not in strict compliance strictly comply with the terms of such Letter of Credit.;
(ii6) Any actionany exchange, inaction release or omission on the part non-perfection of any Collateral, or any release or amendment or waiver of or consent to departure from any loan document; or
(7) any other circumstance or happening whatsoever, whether or not similar to any of the Issuing Lender foregoing, including without limitation any other circumstance that might otherwise constitute a defense available to, or a discharge of, Borrower or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkGuarantor.
Appears in 1 contract
Samples: Revolving Credit Loan and Security Agreement (Cytation Corp)
Letter of Credit Obligations Absolute. (i) The obligation of the Company each Account Party to reimburse the Issuing Lender as provided hereunder in respect of for drawings made under Letters of Credit shall rank pari passu with issued for the obligation account of the Company to repay the Revolving Credit Loans hereunder, Account Party shall be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which the Company or any financial institution Subsidiary or other party to which Affiliate of the Company may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be transferred. The Issuing Lender may accept acting), or pay any draft other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between the Company or any of its Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit was procured);
(c) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with any respect;
(d) Payment by the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.;
(iie) Any action, inaction other circumstance or omission on the part happening whatsoever which is similar to any of the Issuing foregoing; or
(f) the fact that a Default or an Event of Default shall have occurred and be continuing; provided however, that the Account Party shall not be obligated to reimburse the Lender or any of its correspondents for drawings made under or in connection with any Letter the Letters of Credit or if the related instruments, documents or property, if in good faith and in conformity with payment of such laws, regulations or customs as are applicable, shall be binding upon drawing by the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) results directly from Lender's gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New Yorkwilful misconduct.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation of the Company to reimburse the Issuing Lender as provided hereunder in respect of drawings under Letters of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunder, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoing, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the such Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the any Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the any Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are not in strict compliance with the terms of such Letter of Credit.
(ii) Any action, inaction or omission on the part of the Issuing Lender or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's ’s rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New York.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation of the Company Intermet to reimburse the Issuing Lender as provided hereunder in respect of Issuer for drawings made under Letters of Credit issued for the account of Intermet and the Lenders' obligation to honor their participations purchased therein shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunder, be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which Intermet or any financial institution Subsidiary or other party to which Affiliate of Intermet may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be transferred. The Issuing acting), any Lender may accept or pay any draft other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between Intermet or any of its Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit was procured); provided that nothing in this Section shall affect the right of Intermet to seek relief against any beneficiary, transferee, Lender or any other Person in any action or proceeding or to bring a counterclaim in any suit involving such Persons;
(c) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with any respect;
(d) Payment by the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment Issuer under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.;
(iie) Any action, inaction other circumstance or omission on the part happening whatsoever which is similar to any of the Issuing Lender foregoing; or
(f) the fact that a Default or any an Event of Default shall have occurred and be continuing. Nothing in this Section 3.18 shall prevent an action against the Issuer for its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by in honoring drafts under the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkCredit.
Appears in 1 contract
Samples: Credit Agreement (Intermet Corp)
Letter of Credit Obligations Absolute. (i) The obligation of the Company to reimburse the Issuing Lender as provided hereunder in respect of drawings under Letters of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunder, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoing, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the such Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the any Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the any Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are not in strict compliance with the terms of such Letter of Credit.
(ii) Any action, inaction or omission on the part of the Issuing Lender or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New York.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation Unless otherwise required by the order of the Company a court of competent jurisdiction, Borrower's obligations to make payments to Bank in order to reimburse the Issuing Lender as provided hereunder in respect of drawings under payments by Bank on Letters of Credit as provided in Subsection 2.7(B) above shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunderbe absolute, unconditional and irrevocable, and shall be absolute performed strictly in accordance with the terms of this Agreement and unconditional the Letter of Credit Agreement(s), under any and all circumstances subject to subsection whatsoever, and irrespective of:
(iii) below. Without limiting the generality any lack of the foregoing, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters any Letter of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forgedLoan Document, or any dispute between term or among provision therein;
(ii) any amendment or waiver of or any consent to departure from all or any of the Companyprovisions of any Letter of Credit or any Loan Document to which Bank is not a party;
(iii) the existence of any claim, setoff, defense or other right that Borrower or any other Obligor, any other party guaranteeing, or otherwise obligated with, Borrower, any Subsidiary or other Affiliate thereof or Xxxx Gang or any other person may at any time have against the beneficiary of under any Letter of Credit, Bank or any financial institution other Person, whether in connection with this Agreement, any other Loan Document or any other related or unrelated agreement or transaction;
(iv) any draft or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears proving to be regular on its faceforged, and appears on its face to be fraudulent, invalid or insufficient in substantial compliance with the terms of the Letter of Credit, for the validity any respect or sufficiency of any signature statement therein being untrue or endorsement, for delay inaccurate in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making respect;
(v) payment by Bank under any a Letter of Credit if the documents presented are against presentation of a draft or other document that does not in strict compliance comply with the terms of such Letter of Credit.; and
(iivi) Any action, inaction any other act or omission on the part to act or delay of any kind of Bank, or any other person or any other event or circumstance whatsoever, whether or not similar to any of the Issuing Lender foregoing, that might, but for the provisions of this section, constitute a legal or equitable discharge of Borrower's obligations hereunder. Notwithstanding the foregoing, it is expressly understood and agreed that Borrower has not waived any of its correspondents under rights it may have or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability entitled to the Company assert in the absence event of (x) Bank's gross negligence or willful wilful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter other than any claim seeking consequential damages, claims in respect of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement which are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New York.hereby
Appears in 1 contract
Samples: Loan and Security Agreement (Alphanet Solutions Inc)
Letter of Credit Obligations Absolute. (i) The obligation of the Company to reimburse the Issuing Lender Agent as provided hereunder in respect of drawings under Letters of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunder, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) belowcircumstances. Without limiting the generality of the foregoing, the obligation of the Company to reimburse the Issuing Lender Agent in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, Credit or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender Agent may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with conforms to the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender Agent nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with conform to the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are not in strict compliance with the terms of such Letter of Credit.
(ii) Any action, inaction or omission on the part of the Issuing Lender Agent or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender Agent or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender Agent or its correspondents or (y) the failure by the Issuing Lender Agent to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender Agent is prohibited from making such payment pursuant to a court order. The Issuing LenderAgent's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable Uniform Customs and not inconsistent with the laws Practice for Documentary Credits (1993 Revision), International Chamber of the State of New YorkCommerce, Publication No. 500, and any subsequent revisions thereof.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation of the Company Borrower to reimburse the Issuing Lender as provided hereunder in respect of Agent for drawings made under Letters of Credit shall rank pari passu with issued for the obligation account of the Company Borrower or any Eligible Subsidiary, whether or not issued for the joint account of the Agent, and the Lenders' obligation to repay the Revolving Credit Loans hereunder, honor their participations purchased therein shall be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which the Borrower or any financial institution Subsidiary or other party to which Affiliate of the Borrower may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be transferred. The Issuing acting), any Lender may accept or pay any draft other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between the Borrower or any of its Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit was procured); provided that nothing in this Section shall affect the right of the Borrower to seek relief against any beneficiary, transferee, Lender or any other Person in any action or proceeding or to bring a counterclaim in any suit involving such Persons;
(c) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with any respect;
(d) Payment by the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment Agent under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.
; (iie) Any action, inaction other circumstance or omission on the part happening whatsoever which is similar to any of the Issuing Lender or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New York.foregoing; or
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation of the Company Intermet to reimburse the Issuing Lender as provided hereunder in respect of Agent for drawings made under Letters of Credit issued for the account of Intermet and the Lenders' obligation to honor their participations purchased therein shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunder, be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which Intermet or any financial institution Subsidiary or other party to which Affiliate of Intermet may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be transferred. The Issuing acting), any Lender may accept or pay any draft other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between Intermet or any of its Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit was procured); provided that nothing in this Section shall affect the right of Intermet to seek relief against any beneficiary, transferee, Lender or any other Person in any action or proceeding or to bring a counterclaim in any suit involving such Persons;
(c) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with any respect;
(d) Payment by the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment Agent under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.;
(iie) Any action, inaction other circumstance or omission on the part happening whatsoever which is similar to any of the Issuing Lender foregoing; or
(f) the fact that a Default or any an Event of Default shall have occurred and be continuing. Nothing in this Section 3.18 shall prevent an action against the Agent for its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by in honoring drafts under the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkCredit.
Appears in 1 contract
Samples: Credit Agreement (Intermet Corp)
Letter of Credit Obligations Absolute. (i) The obligation of the Company Borrower to reimburse the Issuing Lender as provided hereunder in respect of Issuer for drawings made under Letters of Credit shall rank pari passu with issued for the obligation account of the Company Borrower and the Lenders' obligation to repay the Revolving Credit Loans hereunder, honor their participations purchased therein shall be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which the Borrower or any financial institution Subsidiary or other party to which Affiliate of the Borrower may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be transferred. The Issuing acting), any Lender may accept or pay any draft other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between the Borrower or any of its Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit was procured); provided that nothing in this Section shall affect the right of the Borrower to seek relief against any beneficiary, transferee, Lender or any other Person in any action or proceeding or to bring a counterclaim in any suit involving such Persons;
(c) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with any respect;
(d) Payment by the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment Issuer under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.;
(iie) Any action, inaction other circumstance or omission on the part happening whatsoever which is similar to any of the Issuing Lender foregoing; or
(f) the fact that a Default or any an Event of Default shall have occurred and be continuing. Nothing in this Section 3.18 shall prevent an action against the Issuer for its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by in honoring drafts under the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkCredit.
Appears in 1 contract
Samples: Credit Agreement (Intermet Corp)
Letter of Credit Obligations Absolute. (iA) The obligation of the Company to reimburse the Issuing Lender Agent as provided hereunder in respect of drawings under Letters of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Tranche B Loans hereunder, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) belowcircumstances. Without limiting the generality of the foregoing, the obligation of the Company to reimburse the Issuing Lender Agent in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, Credit or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender Agent may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with conforms to the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender Agent nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with conform to the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are not in strict compliance with the terms of such Letter of Credit.
(iiB) Any action, inaction or omission on the part of the Issuing Lender Agent or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender Agent or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender Agent or its correspondents or (y) the failure by the Issuing Lender Agent to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender Agent is prohibited from making such payment pursuant to a court order. The Issuing LenderAgent's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable Uniform Customs and not inconsistent with the laws Practice for Documentary Credits (1993 Revision), International Chamber of the State of New YorkCommerce, Publication No. 500, and any subsequent revisions thereof.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation of the Company Borrower's obligations to make payments to Bank in order to reimburse the Issuing Lender as provided hereunder in respect of drawings under payments by Bank on Letters of Credit as provided in Subsection 2.7(B) above shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunderbe absolute, unconditional and irrevocable, and shall be absolute performed strictly in accordance with the terms of this Agreement and unconditional the Letter of Credit Agreement(s), under any and all circumstances subject to subsection whatsoever, and irrespective of:
(iii) below. Without limiting the generality any lack of the foregoing, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters any Letter of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forgedLoan Document, or any dispute between term or among provision therein;
(ii) any amendment or waiver of or any consent to departure from all or any of the Companyprovisions of any Letter of Credit or any Loan Document to which Bank is not a party;
(iii) the existence of any claim, setoff, defense or other right that Borrower, any other party guaranteeing, or otherwise obligated with, Borrower, any Subsidiary or other Affiliate thereof or any other person may at any time have against the beneficiary of under any Letter of Credit, Bank or any financial institution other Person, whether in connection with this Agreement, any other Loan Document or any other related or unrelated agreement or transaction;
(iv) any draft or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears proving to be regular on its faceforged, and appears on its face to be fraudulent, invalid or insufficient in substantial compliance with the terms of the Letter of Credit, for the validity any respect or sufficiency of any signature statement therein being untrue or endorsement, for delay inaccurate in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making respect;
(v) payment by Bank under any a Letter of Credit if the documents presented are against presentation of a draft or other document that does not in strict compliance comply with the terms of such Letter of Credit.; and
(iivi) Any action, inaction any other act or omission on the part to act or delay of any kind of Bank, or any other person or any other event or circumstance whatsoever, whether or not similar to any of the Issuing Lender foregoing, that might, but for the provisions of this section, constitute a legal or equitable discharge of Borrower's obligations hereunder. It is understood that Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any of its correspondents notices or information to the contrary and, in making any payment under or in connection with any Letter of Credit or (i) Bank's exclusive reliance on the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender presented to it under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless as to any and all matters set forth therein, including reliance on the Issuing Lender is prohibited from making amount of any drafts presented under such payment Letter of Credit, whether or not the amount due to the beneficiary thereunder equals (but does not exceed) the amount of such draft and whether or not any document presented pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters such Letter of Credit issued hereunder willproves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance in any immaterial respect of the documents presented under such Letter of Credit with the terms thereof shall, except to the extent otherwise expressly provided hereunderin each case, be governed by the UCP deemed not to the extent applicable and not inconsistent with the laws constitute wilful misconduct or gross negligence of the State of New YorkBank.
Appears in 1 contract
Samples: Loan and Security Agreement (Leading Edge Packaging Inc)
Letter of Credit Obligations Absolute. (i) The obligation obligations of the Company Borrower under this Agreement, any Letter of Credit Document and any other agreement or instrument relating to reimburse the Issuing Lender as provided hereunder in respect of drawings under Letters any Letter of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunderbe unconditional and irrevocable, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) below. Without limiting paid strictly in accordance with the generality terms of the foregoingthis Agreement, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters such Letter of Credit shall not be subject to Document and such other agreement or instrument under all circumstances, including without limitation the following circumstances:
(i) any defense based on the non-application or misapplication by the beneficiary lack of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related documentthis Agreement, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay Document, any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal other agreement or extension thereof then instrument relating thereto (this Agreement and all of the other foregoing being, collectively, the "L/C Related Documents");
(ii) any change in effectthe time, and is manner or place of payment of, or in substantial compliance any other term of, all or any of the obligations of Borrower in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right that Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), Bank or any other Person, whether in connection with the terms and conditions of such Letter of Credit. Furthermore, neither transactions contemplated by the Issuing Lender nor L/C Related Documents or any of its correspondents nor unrelated transaction;
(iv) any Lender shall be responsible, as to statement or any other document presented under a Letter of Credit which appears proving to be regular on its faceforged, and appears on its face to be fraudulent, invalid or insufficient in substantial compliance with the terms of the Letter of Credit, for the validity any respect or sufficiency of any signature statement therein being untrue or endorsement, for delay inaccurate in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making respect;
(v) payment by Bank under any a Letter of Credit if the documents presented are against presentation of a draft or certificate that does not in strict compliance strictly comply with the terms of such Letter of Credit.;
(iivi) Any actionany exchange, inaction release or omission on the part non-perfection of any Collateral, or any release or amendment or waiver of or consent to departure from any Loan Document; or
(vii) any other circumstance or happening whatsoever, whether or not similar to any of the Issuing Lender foregoing, including without limitation any other circumstance that might otherwise constitute a defense available to, or a discharge of, Borrower or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkGuarantor.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation of the Company Borrowers to reimburse the Issuing Lender as provided hereunder in respect of drawings Bank for each drawing under Letters each Letter of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunderbe absolute, unconditional and irrevocable, and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(a) any and all circumstances subject to subsection (ii) below. Without limiting the generality lack of the foregoing, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, this Agreement, or any financial institution other agreement or instrument relating thereto;
(b) the existence of any claim, counterclaim, set-off, defense or other party to which right that the Borrowers may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be transferred. The acting), the Issuing Lender may accept Bank, the Agent, any of the Banks or pay any draft presented to it under any Letter of Credit regardless of when drawn other Person, whether in connection with this Agreement, the transactions contemplated hereby or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of by such Letter of Credit or any renewal agreement or extension thereof then instrument relating thereto, or any unrelated transaction;
(c) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in effect, and is any respect or any statement therein being untrue or inaccurate in substantial compliance with any respect; or any loss or delay in the terms and conditions transmission or otherwise of any document required in order to make a drawing under such Letter of Credit. Furthermore, neither ; or
(d) any payment by the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented Bank under a such Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms against presentation of the Letter of Credit, for the validity a draft or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are certificate that does not in strict compliance strictly comply with the terms of such Letter of Credit; or any payment made by the Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any debtor relief law.
(ii) Any action, inaction or omission on the part The applicable Borrower shall promptly examine a copy of the Issuing Lender or any of its correspondents under or in connection with any each Letter of Credit or and each amendment thereto that is delivered to it and, in the related instruments, documents or property, if in good faith and in conformity event of any claim of noncompliance with such lawsBorrower’s instructions or other irregularity, regulations or customs as are applicable, such Borrower will immediately notify the Issuing Bank in connection thereof. Such Borrower shall be binding upon the Company and shall not place conclusively deemed to have waived any such claim against the Issuing Lender or any of Bank and its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with unless such Letter of Credit unless the Issuing Lender notice is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New Yorkgiven as aforesaid.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation of the Company Intermet to reimburse the Issuing Lender as provided hereunder in respect of Agent for drawings made under Letters of Credit issued for the account of Intermet and the Domestic Lenders' obligation to honor their participations purchased therein shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunder, be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which Intermet or any financial institution Subsidiary or other party to which Affiliate of Intermet may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be transferred. The Issuing acting), any Domestic Lender may accept or pay any draft other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between Intermet or any of its Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit was procured); provided that nothing in this Section shall affect the right of Intermet to seek relief against any beneficiary, transferee, Domestic Lender or any other Person in any action or proceeding or to bring a counterclaim in any suit involving such Persons;
(c) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with any respect;
(d) Payment by the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment Agent under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.;
(iie) Any action, inaction other circumstance or omission on the part happening whatsoever which is similar to any of the Issuing Lender foregoing; or
(f) the fact that a Default or any an Event of Default shall have occurred and be continuing. Nothing in this Section 5.20 shall prevent an action against the Agent for its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by in honoring drafts under the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkCredit.
Appears in 1 contract
Samples: Credit Agreement (Intermet Corp)
Letter of Credit Obligations Absolute. (i) The obligation of the Company Borrowers to reimburse the Issuing Lender as provided hereunder in respect of drawings Bank for each drawing under Letters each Letter of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunderbe absolute, unconditional and irrevocable, and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(a) any and all circumstances subject to subsection (ii) below. Without limiting the generality lack of the foregoing, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, this Agreement, or any financial institution other agreement or instrument relating thereto;
(b) the existence of any claim, counterclaim, set-off, defense or other party to which right that the Borrowers may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be transferred. The acting), the Issuing Lender may accept Bank, the Agent, any of the Banks or pay any draft presented to it under any Letter of Credit regardless of when drawn other Person, whether in connection with this Agreement, the transactions contemplated hereby or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of by such Letter of Credit or any renewal agreement or extension thereof then instrument relating thereto, or any unrelated transaction;
(c) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in effect, and is any respect or any statement therein being untrue or inaccurate in substantial compliance with any respect; or any loss or delay in the terms and conditions transmission or otherwise of any document required in order to make a drawing under such Letter of Credit. Furthermore, neither ; or
(d) any payment by the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented Bank under a such Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms against presentation of the Letter of Credit, for the validity a draft or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are certificate that does not in strict compliance strictly comply with the terms of such Letter of Credit; or any payment made by the Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Laws.
(ii) Any action, inaction or omission on the part The applicable Borrower shall promptly examine a copy of the Issuing Lender or any of its correspondents under or in connection with any each Letter of Credit or and each amendment thereto that is delivered to it and, in the related instruments, documents or property, if in good faith and in conformity event of any claim of noncompliance with such lawsBorrower’s instructions or other irregularity, regulations or customs as are applicable, such Borrower will immediately notify the Issuing Bank in connection thereof. Such Borrower shall be binding upon the Company and shall not place conclusively deemed to have waived any such claim against the Issuing Lender or any of Bank and its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with unless such Letter of Credit unless the Issuing Lender notice is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New Yorkgiven as aforesaid.
Appears in 1 contract
Letter of Credit Obligations Absolute. (i) The obligation ------------------------------------- of the Company Intermet to reimburse the Issuing Lender as provided hereunder in respect of Agent for drawings made under Letters of Credit issued for the account of Intermet and the Lenders' obligation to honor their participations purchased therein shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunder, be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which Intermet or any financial institution Subsidiary or other party to which Affiliate of Intermet may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be transferred. The Issuing acting), any Lender may accept or pay any draft other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between Intermet or any of its Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit was procured); provided that nothing in this Section shall affect the right of Intermet to seek -------- relief against any beneficiary, transferee, Lender or any other Person in any action or proceeding or to bring a counterclaim in any suit involving such Persons;
(c) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with any respect;
(d) Payment by the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment Agent under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.;
(iie) Any action, inaction other circumstance or omission on the part happening whatsoever which is similar to any of the Issuing Lender foregoing; or
(f) the fact that a Default or any an Event of Default shall have occurred and be continuing. Nothing in this Section 3.18 shall prevent an action against the Agent for its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) ------------ gross negligence or willful misconduct by in honoring drafts under the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkCredit.
Appears in 1 contract
Samples: Credit Agreement (Intermet Corp)
Letter of Credit Obligations Absolute. (i) The obligation of the Company ------------------------------------- each Account Party to reimburse the Issuing Lender as provided hereunder in respect of Agent for drawings made under Letters of Credit shall rank pari passu with issued for the obligation account of the Company Account Party and the Banks' obligation to repay the Revolving Credit Loans hereunder, honor their participations purchased therein shall be unconditional and irrevocable and shall be absolute and unconditional paid strictly in accordance with the terms of this Agreement under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoingcircumstances, including without limitation, the obligation following circumstances:
(a) Any lack of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which the Company or any financial institution Subsidiary or other party to which Affiliate of the Company may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or any transferee may be transferred. The Issuing Lender may accept acting), any Bank or pay any draft other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including without limitation any underlying transaction between the Company or any of its Subsidiaries and Affiliates and the beneficiary for which such Letter of Credit was procured);
(c) Any draft, demand, certificate or any other document presented to it under any Letter of Credit regardless of when drawn proving to be forged, fraudulent or made and whether or not negotiated, if such draft, accompanying certificate or documents and invalid in any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit respect or any renewal statement therein being untrue or extension thereof then inaccurate in effect, and is in substantial compliance with any respect;
(d) Payment by the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment Agent under any Letter of Credit if the documents presented are against presentation of a demand, draft or certificate or other document which does not in strict compliance comply with the terms of such Letter of Credit.;
(iie) Any action, inaction other circumstance or omission on the part happening whatsoever which is similar to any of the Issuing Lender foregoing; or
(f) the fact that a Default or any an Event of Default shall have occurred and be continuing. Nothing in this Section 2.25 shall prevent an action against the Agent for its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by in honoring drafts under the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkCredit.
Appears in 1 contract
Samples: Revolving Credit Agreement (Law Companies Group Inc)
Letter of Credit Obligations Absolute. (i) The obligation With regard to each Letter of Credit, the Company obligations of Borrower to reimburse the Issuing Lender as provided hereunder in respect Bank under this Loan Agreement, any Letter of drawings under Letters Credit Document and any other agreement or instrument relating to any Letter of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunderbe unconditional and irrevocable, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) below. Without limiting paid strictly in accordance with the generality terms of the foregoingthis Loan Agreement, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters such Letter of Credit shall not be subject to Document and such other agreement or instrument under all circumstances, including without limitation the following circumstances:
(1) any defense based on the non-application or misapplication by the beneficiary lack of the proceeds of any such drawing or the legality, validity, regularity validity or enforceability of the Letters of Credit or any related documentthis Loan Agreement, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay Document, any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal other agreement or extension thereof then instrument relating thereto (this Loan Agreement and all of the other foregoing being, collectively, the “L/C Related Documents”);
(2) any change in effectthe time, and is manner or place of payment of, or in substantial compliance any other term of, all or any of the obligations of Borrower in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;
(3) the existence of any claim, set-off, defense or other right that Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), Bank or any other person, whether in connection with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor transactions contemplated thereby or any of its correspondents nor other unrelated transaction;
(4) any Lender shall be responsible, as to statement or any other document presented under a Letter of Credit which appears proving to be regular on its faceforged, and appears on its face to be fraudulent, invalid or insufficient in substantial compliance with the terms of the Letter of Credit, for the validity any respect or sufficiency of any signature statement therein being untrue or endorsement, for delay inaccurate in giving any notice or failure of any instrument to bear adequate reference to the Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making respect;
(5) payment by Bank under any a Letter of Credit if the documents presented are against presentation of a draft or certificate that does not in strict compliance strictly comply with the terms of such Letter of Credit.;
(ii6) Any actionany exchange, inaction release or omission on the part non-perfection of any Collateral, or any release or amendment or waiver of or consent to departure from any loan document; or
(7) any other circumstance or happening whatsoever, whether or not similar to any of the Issuing Lender foregoing, including without limitation any other circumstance that might otherwise constitute a defense available to, or any of its correspondents under or in connection with any Letter of Credit or the related instrumentsa discharge of, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New YorkBorrower.
Appears in 1 contract
Samples: Revolving Credit Loan and Security Agreement (Deer Valley Corp)
Letter of Credit Obligations Absolute. (i) The obligation of the Company to reimburse the Issuing Lender as provided hereunder in respect of drawings under Letters of Credit shall rank pari passu with the obligation of the Company to repay the Revolving Credit Loans hereunder, and shall be absolute and unconditional under any and all circumstances subject to subsection (ii) below. Without limiting the generality of the foregoing, the obligation of the Company to reimburse the Issuing Lender in respect of drawings under Letters of Credit shall not be subject to any defense based on the non-non- application or misapplication by the beneficiary of the proceeds of any such drawing or the legality, validity, regularity or enforceability of the Letters of Credit or any related document, even though such document shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Company, the beneficiary of any Letter of Credit, or any financial institution or other party to which any Letter of Credit may be transferred. The Issuing Lender may accept or pay any draft presented to it under any Letter of Credit regardless of when drawn or made and whether or not negotiated, if such draft, accompanying certificate or documents and any transmittal advice are presented or negotiated on or before the expiry date of such Letter of Credit or any renewal or extension thereof then in effect, and is in substantial compliance with the terms and conditions of such Letter of Credit. Furthermore, neither the Issuing Lender nor any of its correspondents nor any Lender shall be responsible, as to any document presented under a Letter of Credit which appears to be regular on its face, and appears on its face to be in substantial compliance with the terms of the such Letter of Credit, for the validity or sufficiency of any signature or endorsement, for delay in giving any notice or failure of any instrument to bear adequate reference to the any Letter of Credit, or for failure of any Person to note the amount of any draft on the reverse of the any Letter of Credit. The Issuing Lender shall have the right, in its sole discretion, to decline to accept any documents and to decline to making payment under any Letter of Credit if the documents presented are not in strict compliance with the terms of such Letter of Credit.
(ii) Any action, inaction or omission on the part of the Issuing Lender or any of its correspondents under or in connection with any Letter of Credit or the related instruments, documents or property, if in good faith and in conformity with such laws, regulations or customs as are applicable, shall be binding upon the Company and shall not place the Issuing Lender or any of its correspondents or any Lender under any liability to the Company in the absence of (x) gross negligence or willful misconduct by the Issuing Lender or its correspondents or (y) the failure by the Issuing Lender to pay under a Letter of Credit after presentation of a draft and documents strictly complying with such Letter of Credit unless the Issuing Lender is prohibited from making such payment pursuant to a court order. The Issuing Lender's rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract. All Letters of Credit issued hereunder will, except to the extent otherwise expressly provided hereunder, be governed by the UCP to the extent applicable and not inconsistent with the laws of the State of New York.
Appears in 1 contract
