Common use of Nature of Letter of Credit Obligations Absolute Clause in Contracts

Nature of Letter of Credit Obligations Absolute. The obligations of the Borrowers to reimburse the Banks for drawings made under any Letter of Credit shall be joint, several, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation (it being understood that any such payment by the Borrowers shall be without prejudice to, and shall not constitute a waiver of, any rights the Borrowers might have or might acquire as a result of the payment by the Fronting Bank of any draft or the reimbursement by the Borrowers thereof): (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which any Borrower may have at any time against a beneficiary of any Letter of Credit or against any of the Banks, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by a Fronting Bank of any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit; (v) any other circumstance or happening whatsoever, which is similar to any of the foregoing; or (vi) the fact that any Event of Default shall have occurred and be continuing, provided that the foregoing shall not be construed to excuse the Fronting Bank from liability to the Borrowers to the extent that any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by the Borrowers that are caused by the Fronting Bank's failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the Fronting Bank (as finally determined by a court of competent jurisdiction), the Fronting Bank shall be deemed to have exercised care in each such determination.

Nature of Letter of Credit Obligations Absolute. The ----------------------------------------------- obligations of the Borrowers Borrower to reimburse the Banks for drawings made under any Letter of Credit shall be joint, several, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation (it being understood that any such payment by the Borrowers Borrower shall be without prejudice to, and shall not constitute a waiver of, any rights the Borrowers Borrower might have or might acquire as a result of the payment by the Fronting Bank of any draft or the reimbursement by the Borrowers Borrower thereof): (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which the Borrower or any Borrower Guarantor may have at any time against a beneficiary of any Letter of Credit or against any of the Banks, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by a Fronting Bank of any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit; (v) any other circumstance or happening whatsoever, which is similar to any of the foregoing; or (vi) the fact that any Event of Default shall have occurred and be continuing, provided that the foregoing shall not be construed to excuse the . The Fronting Bank from liability shall, promptly following its receipt thereof, examine all documents purporting to the Borrowers to the extent that any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by the Borrowers that are caused by the Fronting Bank's failure to exercise care when determining whether drafts and other documents presented represent a demand for payment under a Letter of Credit to determine whether such documents comply with the terms thereof. The parties hereto expressly agree that, draw requirements set forth in the absence such Letter of gross negligence or wilful misconduct on the part of the Fronting Bank (as finally determined by a court of competent jurisdiction), the Fronting Bank shall be deemed to have exercised care in each such determinationCredit.

Nature of Letter of Credit Obligations Absolute. The obligations of the Borrowers Borrower to reimburse the Banks DIP Lenders for drawings made under any Letter of Credit shall be joint, several, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation (it being understood that any such payment by the Borrowers shall be without prejudice to, and shall not constitute a waiver of, any rights the Borrowers might have or might acquire as a result of the payment by the Fronting Bank of any draft or the reimbursement by the Borrowers thereof): limitation: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which that the Borrower or any Borrower Guarantor may have at any time against a beneficiary of any Letter of Credit or against any of the BanksDIP Lenders, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by a Fronting Bank of any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit; (v) any other circumstance or happening whatsoever, which that is similar to any of the foregoing; or (vi) the fact that any Event of Default shall have occurred and be continuing. None of the Agent, the DIP Lenders, the Fronting Bank and their respective affiliates shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Fronting Bank; provided that the foregoing shall not be construed to excuse the Fronting Bank from liability to the Borrowers Borrower to the extent that of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrowers Borrower to the extent permitted by applicable law) suffered by the Borrowers Borrower that are caused by the Fronting Bank's failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The Without limiting the generality of the foregoing, the parties hereto expressly agree that, with respect to documents presented which appear on their face to be in substantial compliance with the absence terms of gross negligence or wilful misconduct on the part a Letter of the Fronting Bank (as finally determined by a court of competent jurisdiction)Credit, the Fronting Bank shall be deemed may, in its sole discretion, either (A) accept and make payment upon such documents without responsibility for further investigation, regardless of any notice of information to have exercised care in each the contrary, or (B) refuse to accept and make payment upon such determinationdocuments if such documents do not strictly comply with the terms of such Letter of Credit.

Nature of Letter of Credit Obligations Absolute. The obligations of the Borrowers to reimburse the Banks Revolving Credit Lenders for drawings made under any Letter of Credit shall be joint, joint and several, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation (it being understood that any such payment by the Borrowers shall be without prejudice to, and shall not constitute a waiver of, any rights the Borrowers might have or might acquire as a result of the payment by the Fronting Bank of any draft or the reimbursement by the Borrowers thereof): limitation: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which any Borrower may have at any time against a beneficiary of any Letter of Credit or against any of the BanksRevolving Credit Lenders, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by a the Fronting Bank of any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit; (v) any other circumstance or happening whatsoever, which is similar to any of the foregoing; or (vi) the fact that any Event of Default shall have occurred and be continuing, provided that the foregoing . Nothing in this Section 2.05 shall not be construed to excuse limit any claim any Borrower may have against the Fronting Bank from liability to the Borrowers to the extent that for any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by the Borrowers such Borrower that are caused directly by the Fronting Bank's failure to exercise care when determining whether drafts and other documents presented under ’s gross negligence or willful misconduct in honoring a Letter presentation of Credit a draft that does not at least substantially comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the Fronting Bank (as finally determined by a court Letter of competent jurisdiction), the Fronting Bank shall be deemed to have exercised care in each Credit under which such determinationdraft is drawn.

Nature of Letter of Credit Obligations Absolute. The obligations of the Borrowers Borrower to reimburse the Fronting Banks and the New Revolving Lenders for drawings made under any Letter of Credit shall be joint, several, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation (it being understood that any such payment by the Borrowers shall be without prejudice to, and shall not constitute a waiver of, any rights the Borrowers might have or might acquire as a result of the payment by the Fronting Bank of any draft or the reimbursement by the Borrowers thereof): limitation: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which any the Borrower may have at any time against a beneficiary of any Letter of Credit or against the relevant Fronting Bank or any of the BanksNew Revolving Lenders, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction; (iii) payment by the relevant Fronting Bank against any draft, demand, certificate or other document presented under any Letter of Credit proving which proves to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by a the relevant Fronting Bank of any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit (including, without limitation, payment by the Fronting Bank in accordance with its usual practices and procedures, subsequent to the expiry date of a Letter of Credit, as long as the Fronting Bank has obtained the consent of the Borrower thereto and has not been notified in writing by the Agent or a New Revolving Lender of the occurrence of the Maturity Date); (v) any other circumstance or happening whatsoever, which is similar to any of the foregoing; or (vi) the fact that any Event of Default shall have occurred and be continuingcontinuing (it being understood that any such payment by the Borrower shall be without prejudice to, provided that the foregoing and shall not be construed to excuse constitute a waiver of, any rights the Borrower might have or might acquire against any party as a result of the payment by the relevant Fronting Bank from liability to of any draft or the Borrowers to the extent that any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived reimbursement by the Borrowers to the extent permitted by applicable law) suffered by the Borrowers that are caused by the Fronting Bank's failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms Borrower thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the Fronting Bank (as finally determined by a court of competent jurisdiction), the Fronting Bank shall be deemed to have exercised care in each such determination.

Nature of Letter of Credit Obligations Absolute. The obligations of the Borrowers Borrower to reimburse the Banks for drawings made under any Letter of Credit shall be joint, several, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation (it being understood that any such payment by the Borrowers Borrower or any Guarantor shall be without prejudice to, and shall not constitute a waiver of, any rights the Borrowers Borrower might have or might acquire as a result of the payment by the Fronting Bank of any draft or the reimbursement by the Borrowers Borrower or any Guarantor thereof): ): (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which the Borrower or any Borrower Guarantor may have at any time against a beneficiary of any Letter of Credit or against any of the Banks, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by a Fronting Bank of any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit; (v) any other circumstance or happening whatsoever, which is similar to any of the foregoing; or (vi) the fact that any Event of Default shall have occurred and be continuing, provided that the foregoing shall not be construed to excuse the Fronting Bank from liability to the Borrowers to the extent that any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by the Borrowers that are caused by the Fronting Bank's failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the Fronting Bank (as finally determined by a court of competent jurisdiction), the Fronting Bank shall be deemed to have exercised care in each such determination.

Nature of Letter of Credit Obligations Absolute. The Borrower’s reimbursement obligations of the Borrowers with respect to reimburse the Banks for drawings made under any Letter of Credit shall be joint, several, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation (it being understood that any such payment by the Borrowers shall be without prejudice to, and shall not constitute a waiver of, any rights the Borrowers might have or might acquire as a result of the payment by the Fronting Bank of any draft or the reimbursement by the Borrowers thereof): limitation: (i) any lack of validity or enforceability of any such Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which any the Borrower may have at any time against a beneficiary of any such Letter of Credit or or, in the case of a drawing made under an R/C Letter of Credit, against any of the BanksRevolving Credit Lenders, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under any a Letter of Credit of either Class proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by a the applicable Fronting Bank of any Letter of Credit of either Class against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit; (v) any other circumstance or happening whatsoever, which is similar to any of the foregoing; or (vi) the fact that any Event of Default shall have occurred and be continuing, provided that the foregoing . Nothing in this Section 2.07 shall not be construed to excuse limit any claim the Borrower may have against the applicable Fronting Bank from liability to the Borrowers to the extent that for any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by the Borrowers Borrower that are caused by the such Fronting Bank's failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of ’s gross negligence or wilful willful misconduct on in the part performance of the Fronting Bank (as finally determined by a court of competent jurisdiction), the Fronting Bank shall be deemed to have exercised care its duties in each such determinationcapacity.

Nature of Letter of Credit Obligations Absolute. The obligations of the Borrowers Borrower to reimburse the Fronting Banks and the Lenders for drawings made under any Letter of Credit shall be joint, several, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation (it being understood that any such payment by the Borrowers Borrower shall be without prejudice to, and shall not constitute a waiver of, any rights the Borrowers Borrower might have or might acquire as a result of the payment by the relevant Fronting Bank of any draft or the reimbursement by the Borrowers Borrower thereof): (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which any the Borrower may have at any time against a beneficiary of any Letter of Credit or against the relevant Fronting Bank or any of the BanksLenders, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by a the relevant Fronting Bank of any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of CreditCredit (including without limitation, payment by the Documentary Letter of Credit Fronting Bank in accordance with its usual practices and procedures, subsequent to the expiry date of a Documentary Letter of Credit as long as the Documentary Letter of Credit Fronting Bank has obtained the consent of the Borrower thereto and has not been notified in writing by the Agent or a Lender of the occurrence of the Termination Date); (v) any other circumstance or happening whatsoever, which is similar to any of the foregoing; or (vi) the fact that any Event of Default shall have occurred and be continuing, provided that the foregoing shall not be construed to excuse the Fronting Bank from liability to the Borrowers to the extent that any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by the Borrowers that are caused by the Fronting Bank's failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the Fronting Bank (as finally determined by a court of competent jurisdiction), the Fronting Bank shall be deemed to have exercised care in each such determination.

Nature of Letter of Credit Obligations Absolute. The obligations of the Borrowers Borrower to reimburse the Banks Lenders for drawings made under any Letter of Credit shall be joint, several, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation (it being understood that any such payment by the Borrowers Borrower shall be without prejudice to, and shall not constitute a waiver of, any rights the Borrowers Borrower might have or might acquire as a result of the payment by the Fronting Bank of any draft or the reimbursement by the Borrowers Borrower thereof): (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which the Borrower or any Borrower Guarantor may have at any time against a beneficiary of any Letter of Credit or against any of the BanksLenders, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by a Fronting Bank of any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit; (v) any other circumstance or happening whatsoever, which is similar to any of the foregoing; or (vi) the fact that any Default or Event of Default shall have occurred and be continuing; provided, provided however, that the foregoing nothing herein shall not be construed to excuse relieve the Fronting Bank from or any Lender of liability to the Borrowers to the extent that any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by the Borrowers that are caused by the Fronting Bank's failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of for its own gross negligence or wilful misconduct on the part of the Fronting Bank (as finally determined by a court of competent jurisdiction), the Fronting Bank shall be deemed to have exercised care in each such determinationwillful misconduct.