Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for: (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof); (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) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee; (d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit; (f) errors in interpretation of technical terms; (g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 3 contracts
Samples: Credit Agreement (Ferro Corp), Credit Agreement (Ferro Corp), Credit Agreement (Ferro Corp)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender Borrower shall assume all risks of the acts, omissions omissions, or misuse of any Letter of Credit by the beneficiary thereof. No Neither any Issuer nor any Lender (except to the extent of its own gross negligence, bad faith negligence or willful misconduct) shall be responsible for:
: (ai) the form, validity, sufficiency, accuracy, genuineness genuineness, or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent fraudulent, or forged forged; (even if such Issuer shall have been notified thereof);
(bii) the form, validity, sufficiency, accuracy, genuineness 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;
; (ciii) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
; (div) errors, omissions, interruptions interruptions, or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipher;
; (ev) any loss or delay in-in the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication Credit or non-application by the beneficiary of any such Letter of Credit of the proceeds thereof; (vi) any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of the Borrower in respect of any drawing under such Letter of Credit; or
(hvii) the existence of any claim, set-off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of any Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuer (if other than a Lender or its Affiliates) or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by the Letter of Credit or any unrelated transaction; (viii) any consequences arising from causes beyond payment by an Issuer under any Letter of Credit against presentation of a draft or certificate that does not strictly comply with the control terms of such Issuerany Letter of Credit; or any payment made by an Issuer under any 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 any Letter of Credit, including any governmental acts and none arising in connection with any insolvency proceeding; or (ix) any other circumstance or happening whatsoever, whether or not similar to any of the above shall affect or impairforegoing, including any other circumstance that might otherwise constitute a defense available to, or prevent the vesting a discharge of, any of such Issuer’s rights the Borrower or powers hereundera guarantor. None of the foregoing shall affect, impair impair, or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and extension, and not in limitation or derogation derogation, of any of the foregoing, any action taken or omitted to be taken by an any Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, the Borrower and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of CreditBorrower.
Appears in 3 contracts
Samples: Credit Agreement (W&t Offshore Inc), Credit Agreement (W&t Offshore Inc), Credit Agreement (W&t Offshore Inc)
Nature of Reimbursement Obligations. The Borrowersobligations of the Seller to reimburse the applicable LC Bank upon a draw under a Letter of Credit, each shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article I under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other Obligor andright which the Seller may have against such LC Bank, the Administrator, the Purchaser Agents, the Purchasers or any other Person for any reason whatsoever;
(ii) the failure of the Seller or any other Person to comply with the extent conditions set forth in Section 2.7.1this Agreement for the making of a purchase, each Revolving Lender shall assume all risks of the actsreinvestments, omissions or misuse of any Letter requests for Letters of Credit by the beneficiary thereof. No Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for:otherwise;
(aiii) the form, validity, sufficiency, accuracy, genuineness any lack of validity or legal effect enforceability of any Letter of Credit or any document submitted set-off, counterclaim, recoupment, defense or other right which Seller or an Originator on behalf of which a Letter of Credit has been issued may have against such LC Bank, the Administrator, any Purchaser, any Purchaser Agent or any other Person for any reason whatsoever;
(iv) any claim of breach of warranty that might be made by any party in connection with the application for and issuance Seller or such LC Bank against the beneficiary of a Letter of Credit, even if it should or the existence of any claim, set-off, defense or other right which the Seller or such LC Bank may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), such LC Bank, the Administrator, any Purchaser or any Purchaser Agent or any other Person, whether in fact prove to be in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Seller or all respects invalid, insufficient, inaccurate, fraudulent any Subsidiaries of the Seller or forged (even if such Issuer shall have been notified thereofany Affiliates of the Seller and the beneficiary for which any Letter of Credit was procured);
(bv) the formlack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or legal effect other document presented under any Letter of Credit, or any instrument transferring such draft, demand, instrument, certificate or assigning other document proving to be forged, fraudulent, invalid, defective or purporting to transfer insufficient in any respect or assign a any statement therein being untrue or inaccurate in any respect, even if the Administrator or such LC Bank has been notified thereof;
(vi) payment by such LC Bank under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the rights terms of such Letter of Credit other than as a result of the gross negligence or benefits thereunder or the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reasonwillful misconduct of such LC Bank;
(cvii) failure of the solvency of, or any acts or omissions by, any beneficiary of any such Letter of Credit, or any other party Person having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order services relating to make a Disbursement under a Letter of Credit;
(fviii) errors any failure by such LC Bank or any of such LC Bank’s Affiliates to issue any Letter of Credit in interpretation of technical terms;
(g) the misapplication or non-application form requested by the beneficiary Seller, unless such LC Bank has received written notice from the Seller of any such failure within three Business Days after such LC Bank shall have furnished the Seller a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of the proceeds of any drawing under such Letter of Credit; ornotice;
(hix) any consequences arising from causes beyond Material Adverse Effect on the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting ofSeller, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer Originator or any Revolving Lender hereunder. In furtherance Affiliates thereof;
(x) any breach of this Agreement or any Transaction Document by any party thereto;
(xi) the occurrence or continuance of an Insolvency Proceeding with respect to the Seller, any Originator or any Affiliate thereof;
(xii) the fact that a Termination Event or an Unmatured Termination Event shall have occurred and be continuing;
(xiii) the fact that this Agreement or the obligations of Seller or Servicer hereunder shall have been terminated; and
(xiv) any other circumstance or happening whatsoever, whether or not in limitation or derogation of similar to any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 3 contracts
Samples: Receivables Purchase Agreement (Owens Corning), Receivables Purchase Agreement (Owens Corning), Receivables Purchase Agreement (Owens Corning)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender shall assume all risks obligations of the actsBorrowers to reimburse the L/C Issuer upon a draw under a Letter of Credit, omissions shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article III under all circumstances, including the following circumstances:
(a) any set-off, counterclaim, recoupment, defense or misuse other right which such Borrower may have against the L/C Issuer or any other Person for any reason whatsoever;
(b) any lack of validity or enforceability of any Letter of Credit, this Agreement or any other Loan Documents;
(c) any claim of breach of warranty that might be made by any Borrower against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any Borrower may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit by or the proceeds thereof (or any Persons for whom any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, such Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Parent or any of its Subsidiaries and the beneficiary thereof. No Issuer (except to the extent for which any Letter of its own gross negligence, bad faith or willful misconduct) shall be responsible for:Credit was procured);
(ad) the form, lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness or legal effect of any Letter of Credit draft, demand, instrument, certificate or any other document submitted by any party presented under or in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof);
(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) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit fraud or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing alleged fraud in connection with any Letter of Credit Credit, or the transport of any property or provisions of services relating to a Letter of Credit; and
(e) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, that is might, but for this Section, constitute a legal or equitable discharge of the subject Borrowers’ obligations hereunder. Nothing contained in this Section 3.07 shall be deemed to relieve the L/C Issuer from liability on any claim by the Borrowers for the gross negligence or willful misconduct of such Order, notwithstanding that the L/C Issuer in respect of honoring or failing to honor any drafts or other documents presented in connection with such drawing under any Letter of Credit fail to conform or otherwise in respect of any way with such Letter of Credit.
Appears in 2 contracts
Samples: Financing Agreement, Financing Agreement (Builders FirstSource, Inc.)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender shall assume all risks obligations of the actsSeller to reimburse the LC Bank upon a draw under a Letter of Credit which has been honored by the LC Bank, omissions shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under all circumstances, including under the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or misuse other right which the Seller may have against Administrator, Market Street or any other Person for any reason whatsoever or any claim of breach of warranty that might be made by the Seller or the LC Bank against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, defense or other right which the Seller or the LC Bank may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit by or the proceeds thereof (or any Persons for whom any such transferee may be acting), the Administrator, Market Street, the Seller or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Seller or any Subsidiaries of the Seller or any Affiliates of the Seller and the beneficiary thereof. No Issuer (except to the extent for which any Letter of its own gross negligence, bad faith or willful misconduct) shall be responsible for:Credit was procured);
(aii) the formfailure of the Seller or any other Person to comply with the conditions set forth in this Agreement for the making of an Incremental Purchase, Reinvestments, requests for Letters of Credit or otherwise;
(iii) any lack of validity or enforceability of any Letter of Credit;
(iv) the lack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or legal effect other document presented under any Letter of Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent, invalid, defective or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, even if the Administrator or the LC Bank has been notified thereof;
(v) payment by the LC Bank under any Letter of Credit against presentation of a demand, draft or any certificate or other document submitted by any party in connection which does not comply with the application for and issuance terms of a such Letter of Credit, even if it should in fact prove to be in any Credit other than as a result of the gross negligence or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof)willful misconduct of the LC Bank;
(bvi) the formsolvency of, validityor any acts or omissions by, 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) failure of the beneficiary of any such Letter of Credit, or any other party Person having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order services relating to make a Disbursement under a Letter of Credit;
(fvii) errors in interpretation of technical terms;
(g) the misapplication or non-application any failure by the beneficiary LC Bank or any of the LC Bank’s Affiliates to issue any Letter of Credit in the form requested by the Seller, unless the LC Bank has received written notice from the Seller of such failure within three Business Days after the LC Bank shall have furnished the Seller a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of the proceeds of any drawing under such Letter of Credit; ornotice;
(hviii) any consequences arising from causes beyond Material Adverse Effect on the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting ofSeller, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer Originator or any Revolving Lender hereunder. In furtherance Affiliates thereof;
(ix) any breach of this Agreement or any Transaction Document by any party thereto;
(x) the occurrence or continuance of an Event of Bankruptcy with respect to the Seller, any Originator or any Affiliate thereof;
(xi) the fact that an Amortization Event or an Unmatured Amortization Event shall have occurred and be continuing;
(xii) the fact that this Agreement or the obligations of Seller or Servicer hereunder shall have been terminated; and
(xiii) any other circumstance or happening whatsoever, whether or not in limitation or derogation of similar to any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Arch Chemicals Inc), Receivables Purchase Agreement (Arch Chemicals Inc)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender shall assume all risks obligations of the acts, omissions or misuse of any Seller to reimburse an LC Bank upon a draw under a Letter of Credit by the beneficiary thereof. No Issuer (except to the extent of its own gross negligenceCredit, bad faith or willful misconduct) shall be responsible forabsolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article I under all circumstances, including the following circumstances:
(ai) the form, validity, sufficiency, accuracy, genuineness Seller’s lack of funds available to satisfy its Reimbursement Obligation or legal effect the unavailability (for any reason) of Purchases under Section 1.2;
(ii) any lack of validity or enforceability of any Letter of Credit or any document submitted set-off, counterclaim, recoupment, defense or other right which the Seller, any Originator or any Affiliate thereof on behalf of which a Letter of Credit has been issued may have against any LC Bank, the Administrator, any Purchaser, any Purchaser Agent or any other Person for any reason whatsoever;
(iii) any claim of breach of warranty that might be made by the Seller or any party in connection with LC Bank against the application for and issuance beneficiary of a Letter of Credit, even if it should or the existence of any claim, set-off, defense or other right which the Seller or any LC Bank may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), any LC Bank, the Administrator, any Purchaser or any Purchaser Agent or any other Person, whether in fact prove to be in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Seller or all respects invalid, insufficient, inaccurate, fraudulent any Subsidiaries of the Seller or forged (even if such Issuer shall have been notified thereofany Affiliates of the Seller and the beneficiary for which any Letter of Credit was procured);
(biv) the formlack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or legal effect other document presented under any Letter of Credit, or any instrument transferring such draft, demand, instrument, certificate or assigning other document proving to be forged, fraudulent, invalid, defective or purporting to transfer insufficient in any respect or assign a any statement therein being untrue or inaccurate in any respect, even if the Administrator or the applicable LC Bank has been notified thereof;
(v) payment by any LC Bank under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the rights terms of such Letter of Credit other than as a result of the gross negligence or benefits thereunder or willful misconduct of the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reasonapplicable LC Bank;
(cvi) failure of the solvency of, or any acts or omissions by, any beneficiary of any such Letter of Credit, or any other party Person having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order services relating to make a Disbursement under a Letter of Credit;
(fvii) errors any failure by any LC Bank or any of such LC Bank’s Affiliates to issue any Letter of Credit in interpretation of technical terms;
(g) the misapplication or non-application form requested by the beneficiary Seller, unless such LC Bank has received written notice from the Seller of any such failure within three Business Days after such LC Bank shall have furnished the Seller a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(viii) any Material Adverse Effect;
(ix) any breach of this Agreement or any other Transaction Document by any party thereto;
(x) the occurrence or continuance of an Insolvency Proceeding with respect to the Seller, any Originator or any Affiliate thereof;
(xi) the fact that a Termination Event or an Unmatured Termination Event shall have occurred and be continuing;
(xii) the fact that this Agreement or the obligations of the proceeds of any drawing under such Letter of CreditSeller or the Servicer hereunder shall have been terminated; orand
(hxiii) any consequences arising from causes beyond the control of such Issuerother circumstance or happening whatsoever, including any governmental acts and none of the above shall affect whether or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted not similar to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Celanese Corp), Receivables Purchase Agreement (Celanese Corp)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender shall assume all risks Obligations of the actsBorrowers to reimburse the Lender upon a drawing under a Letter of Credit shall be absolute, omissions unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Section 2.7 (including Sections 2.7.7 and 2.7.8) under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or misuse other right which the Lender may have against the Borrowers or any other Person for any reason whatsoever, or which any Loan Party may have against the Lender or any of its Affiliates or any other Person for any reason whatsoever;
(ii) any lack of validity or enforceability of any Letter of Credit, the issuance of which was requested by the Borrowers;
(iii) any claim of breach of warranty that might be made by any Loan Party or the Lender against any beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any Loan Party or the Lender may have at any time against a beneficiary, successor beneficiary any transferee or assignee of any Letter of Credit by or the proceeds thereof (or any Persons for whom any such transferee may be acting), the Lender or its Affiliates or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between any Loan Party or Subsidiaries of a Loan Party and the beneficiary thereof. No Issuer (except to the extent for which any Letter of its own gross negligence, bad faith or willful misconduct) shall be responsible for:Credit was procured);
(aiv) the form, lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or legal effect of other document presented under or in connection with any Letter of Credit Credit, or any document submitted by any party fraud or alleged fraud in connection with any Letter of Credit, or the application for and issuance transport of any property or provision of services relating to a Letter of Credit, in each case even if it should in fact prove to be in the Lender or any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have of its Affiliates has been notified thereof);
(bv) payment by the form, validity, sufficiency, accuracy, genuineness Lender or legal effect any of its Affiliates under any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the rights or benefits thereunder or the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reasonterms of such Letter of Credit;
(cvi) failure of the solvency of, or any acts or omissions by, any beneficiary of any such Letter of Credit, or any other party Person having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order services relating to make a Disbursement under a Letter of Credit;
(fvii) errors in interpretation of technical terms;
(g) the misapplication or non-application any failure by the beneficiary Lender or any of its Affiliates to issue any such Letter of Credit in the form requested by any Loan Party, unless the Lender has received written notice from such Loan Party of such failure, has had sufficient time and the proceeds of any drawing under beneficiary thereof has agreed to amend such Letter of Credit; or, and no drawing has been made thereon;
(hviii) any consequences arising from causes beyond adverse change in the control of such Issuerbusiness, including any governmental acts and none of the above shall affect operations, properties, assets, condition (financial or impair, otherwise) or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting prospects of any Loan Party or Subsidiaries of a Loan Party;
(ix) any breach of this Agreement or any other Loan Document by any party thereto;
(x) the rights occurrence or powers granted continuance of an Insolvency Proceeding with respect to any Issuer Loan Party;
(xi) the fact that an Event of Default or a Potential Default shall have occurred and be continuing;
(xii) the fact that the Expiration Date shall have passed or this Agreement or the Revolving Credit Commitment hereunder shall have been terminated; and
(xiii) any Revolving Lender hereunder. In furtherance and other circumstance or happening whatsoever, whether or not in limitation or derogation of similar to any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 2 contracts
Samples: Credit Agreement (Park Electrochemical Corp), Credit Agreement (Park Electrochemical Corp)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor Borrower and, to the extent set forth in Section 2.7.12.7.2, each Revolving Lender shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No L/C Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for, nor shall any of the obligations of the Borrower or any Lender with respect to any Letter of Credit be affected by, any of the following:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Loan Document, any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof)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 thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(c) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-in the transmission or otherwise of any document or draft required in order to make a Disbursement drawing under a such Letter of Credit;
(f) errors in interpretation any other act or omission to act or delay of technical terms;any kind of the L/C Issuers, the Lenders, the Administrative Agent 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 the Borrower’s obligations hereunder; or
(g) the misapplication or non-application by the beneficiary existence of any such Letter Default or Event of Credit Default, or the termination of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunderCommitments. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer the L/C Issuers, the Administrative Agent or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, neither the Administrative Agent nor any action taken L/C Issuer or omitted Lender shall have any liability or responsibility by reason of, or in connection with, the form, validity issuance, transfer, payment, non-payment or any other transaction related to be taken any Letter of Credit, provided the foregoing shall not excuse any L/C Issuer from liability to the Borrower or the Lenders to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by an Issuer the Borrower and the Lenders to the extent permitted by applicable Law) suffered by the Borrower, the Administrative Agent or the Lenders that are caused by such L/C Issuer’s failure to exercise reasonable 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 good faith (and not constituting the absence of gross negligence, bad faith negligence or willful misconduct) misconduct on the part of any L/C Issuer (as finally determined by a court of competent jurisdiction), such L/C Issuer shall be binding upon deemed to have exercised reasonable care in each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may bedetermination. Without limiting the generality of the foregoing, each Issuer (i) may rely the parties agree that, with respect to documents presented which appear on any oral or other communication believed their face to be in good faith by such Issuer to have been authorized or given by or on behalf compliance with the terms of the applicant for a Letter of Credit, (ii) may honor each L/C Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any presentation notice or information to the contrary, or refuse to accept and make payment upon such documents if the such documents presented appear on their face substantially to comply are not in strict compliance with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 2 contracts
Samples: Credit Agreement (Wayfair Inc.), Credit Agreement (Wayfair Inc.)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor Borrowers and, to the extent set forth in Section 2.7.12.7.2, each Revolving Lender shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No L/C Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for, nor shall any of the obligations of the Borrowers or any Revolving Lender with respect to any Letter of Credit be affected by, any of the following:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Loan Document, any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof)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 thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(c) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphtelecopier, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-in the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation any other act or omission to act or delay of technical terms;any kind of the L/C Issuers, the Lenders, the Administrative Agent 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 the Borrowers’ obligations hereunder; or
(g) the misapplication or non-application by the beneficiary existence of any such Letter Default or Event of Credit Default, or the termination of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunderCommitments. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer the L/C Issuers, the Administrative Agent or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, neither the Administrative Agent nor any action taken L/C Issuer or omitted Lender shall have any liability or responsibility by reason of, or in connection with, the form, validity issuance, transfer, payment, non-payment or any other transaction related to be taken any Letter of Credit, provided none of the foregoing shall excuse any L/C Issuer from liability to the Borrowers or the Lenders to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by an Issuer the Borrowers and the Lenders to the extent permitted by applicable Law) suffered by the Borrowers, the Administrative Agent or the Lenders that are caused by such L/C Issuer’s failure to exercise reasonable 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 good faith (and not constituting the absence of gross negligence, bad faith negligence or willful misconduct) misconduct on the part of any L/C Issuer (as finally determined by a court of competent jurisdiction), such L/C Issuer shall be binding upon deemed to have exercised reasonable care in each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may bedetermination. Without limiting the generality of the foregoing, each Issuer (i) may rely the parties agree that, with respect to documents presented which appear on any oral or other communication believed their face to be in good faith by such Issuer to have been authorized or given by or on behalf compliance with the terms of the applicant for a Letter of Credit, (ii) may honor each L/C Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any presentation notice or information to the contrary, or refuse to accept and make payment upon such documents if the such documents presented appear on their face substantially to comply are not in strict compliance with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 2 contracts
Samples: Credit Agreement (Applied Medical Corp), Credit Agreement (Applied Medical Corp)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor Borrower and, to the extent set forth in Section 2.7.12.6.3, each Revolving Lender shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No L/C Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for, nor shall any of the obligations of the Borrower or any Revolving Lender with respect to any Letter of Credit be affected by, any of the following:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Loan Document, any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof)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 thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(c) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-in the transmission or otherwise of any document or draft required in order to make a Disbursement drawing under a such Letter of Credit;
(f) errors in interpretation any other act or omission to act or delay of technical terms;any kind of the L/C Issuers, the Lenders, the Administrative Agent 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 the Borrower’s obligations hereunder; or
(g) the misapplication or non-application by the beneficiary existence of any such Letter Default or Event of Credit Default, or the termination of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunderCommitments. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer the L/C Issuers, the Administrative Agent or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, neither the Administrative Agent nor any action taken L/C Issuer or omitted Lender shall have any liability or responsibility by reason of, or in connection with, the form, validity issuance, transfer, payment, nonpayment or any other transaction related to be taken any Letter of Credit, provided the foregoing shall not excuse any L/C Issuer from liability to the Borrower or the Lenders to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by an Issuer the Borrower and the Lenders to the extent permitted by applicable Law) suffered by the Borrower, the Administrative Agent or the Lenders that are caused by such L/C Issuer’s failure to exercise reasonable 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 good faith (and not constituting the absence of gross negligence, bad faith negligence or willful misconduct) misconduct on the part of any L/C Issuer (as finally determined by a court of competent jurisdiction), such L/C Issuer shall be binding upon deemed to have exercised reasonable care in each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may bedetermination. Without limiting the generality of the foregoing, each Issuer (i) may rely the parties agree that, with respect to documents presented which appear on any oral or other communication believed their face to be in good faith by such Issuer to have been authorized or given by or on behalf compliance with the terms of the applicant for a Letter of Credit, (ii) may honor each L/C Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any presentation notice or information to the contrary, or refuse to accept and make payment upon such documents if the such documents presented appear on their face substantially to comply are not in strict compliance with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 2 contracts
Samples: Credit Agreement (GrubHub Inc.), Credit Agreement (GrubHub Inc.)
Nature of Reimbursement Obligations. The Borrowersobligations of the Seller to reimburse the LC Bank upon a draw under a Letter of Credit, each shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article I under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other Obligor andright which the Seller may have against the LC Bank, the Administrator, any Purchaser or any other Person for any reason whatsoever;
(ii) the failure of the Seller or any other Person to comply with the extent conditions set forth in Section 2.7.1this Agreement for the making of a purchase, each Revolving Lender shall assume all risks reinvestments, requests for Letters of Credit or otherwise, it being acknowledged that such conditions are not required for the actsmaking of participation advances hereunder;
(iii) any lack of validity or enforceability of any Letter of Credit;
(iv) any claim of breach of warranty that might be made by the Seller or the LC Bank against the beneficiary of a Letter of Credit, omissions or misuse the existence of any claim, set-off, defense or other right which the Seller or the LC Bank may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit by or the proceeds thereof (or any Persons for whom any such transferee may be acting), the Administrator, any Purchaser or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Seller or any Subsidiaries of the Seller or any Affiliates of the Seller and the beneficiary thereof. No Issuer (except to the extent for which any Letter of its own gross negligence, bad faith or willful misconduct) shall be responsible for:Credit was procured);
(av) the formlack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or legal effect other document presented under any Letter of Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent, invalid, defective or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, even if the Administrator or the LC Bank has been notified thereof;
(vi) payment by the LC Bank under any Letter of Credit against presentation of a demand, draft or any certificate or other document submitted by any party in connection which does not comply with the application for and issuance terms of a such Letter of Credit, even if it should in fact prove to be in any Credit other than as a result of the gross negligence or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof)willful misconduct of the LC Bank;
(bvii) the formsolvency of, validityor any acts or omissions by, 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) failure of the beneficiary of any such Letter of Credit, or any other party Person (other than the LC Bank) having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order services relating to make a Disbursement under a Letter of Credit;
(fviii) errors in interpretation of technical terms;
(g) the misapplication or non-application any failure by the beneficiary LC Bank or any of the LC Bank’s Affiliates to issue any Letter of Credit in the form requested by the Seller, unless the LC Bank has received written notice from the Seller of such failure within three Business Days after the LC Bank shall have furnished the Seller a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of the proceeds of any drawing under such Letter of Credit; ornotice;
(hix) any consequences arising from causes beyond Material Adverse Effect on the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting ofSeller, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer Originator or any Revolving Lender hereunder. In furtherance Affiliates thereof;
(x) any breach of this Agreement or any Transaction Document by any party thereto;
(xi) the occurrence or continuance of an Insolvency Proceeding with respect to the Seller, any Originator or any Affiliate thereof (other than a Permitted Holder);
(xii) the fact that a Termination Event or an Unmatured Termination Event shall have occurred and be continuing;
(xiii) the fact that this Agreement or the obligations of Seller or Servicer hereunder shall have been terminated; and
(xiv) any other circumstance or happening whatsoever, whether or not in limitation or derogation of similar to any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Samples: Receivables Purchase Agreement (American Greetings Corp)
Nature of Reimbursement Obligations. The Borrowersobligations of the Seller to reimburse the LC Bank upon a draw under a Letter of Credit, each shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article I under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other Obligor andright which the Seller may have against the LC Bank, the Agent, the Purchasers or any other Person for any reason whatsoever;
(ii) the failure of the Seller or any other Person to comply with the extent conditions set forth in Section 2.7.1this Agreement for the making of a purchase, each Revolving Lender shall assume all risks of the actsreinvestments, omissions or misuse of any Letter requests for Letters of Credit by the beneficiary thereof. No Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for:otherwise;
(aiii) the form, validity, sufficiency, accuracy, genuineness any lack of validity or legal effect enforceability of any Letter of Credit or any document submitted set-off, counterclaim, recoupment, defense or other right which Seller or an Originator on behalf of which a Letter of Credit has been issued may have against the LC Bank, the Agent, any Purchaser or any other Person for any reason whatsoever;
(iv) any claim of breach of warranty that might be made by any party in connection with the application for and issuance Seller or the LC Bank against the beneficiary of a Letter of Credit, even if it should or the existence of any claim, set-off, defense or other right which the Seller or the LC Bank may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the LC Bank, the Agent, any Purchaser or any other Person, whether in fact prove to be in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Seller or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereofany Affiliates of the Seller and the beneficiary for which any Letter of Credit was procured);
(bv) the formlack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or legal effect other document presented under any Letter of Credit, or any instrument transferring such draft, demand, instrument, certificate or assigning other document proving to be forged, fraudulent, invalid, defective or purporting to transfer insufficient in any respect or assign a any statement therein being untrue or inaccurate in any respect, even if the LC Bank, the Agent or any Purchaser has been notified thereof;
(vi) payment by the LC Bank under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the rights terms of such Letter of Credit other than as a result of the gross negligence or benefits thereunder or willful misconduct of the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reasonLC Bank;
(cvii) failure of the solvency of, or any acts or omissions by, any beneficiary of any such Letter of Credit, or any other party Person having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order services relating to make a Disbursement under a Letter of Credit;
(fviii) errors in interpretation of technical terms;
(g) the misapplication or non-application any failure by the beneficiary LC Bank or any of the LC Bank’s Affiliates to issue any Letter of Credit in the form requested by the Seller, unless the LC Bank has received written notice from the Seller of such failure within three Business Days after the LC Bank shall have furnished the Seller a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(ix) any Material Adverse Effect;
(x) any breach of this Agreement or any Transaction Document by any party hereto or thereto;
(xi) the occurrence or continuance of an Insolvency Proceeding with respect to the Seller, the Collection Agent, any Originator or any Affiliate thereof;
(xii) the fact that an Amortization Event or Potential Amortization Event shall have occurred and be continuing;
(xiii) the fact that this Agreement or the obligations of the proceeds of any drawing under such Letter of CreditSeller or the Collection Agent hereunder shall have been terminated; orand
(hxiv) any consequences arising from causes beyond the control of such Issuerother circumstance or happening whatsoever, including any governmental acts and none of the above shall affect whether or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted not similar to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Nature of Reimbursement Obligations. The BorrowersObligations of the Borrower to reimburse the Bank upon a draw under the Letter of Credit, each shall be absolute, unconditional and irrevocable. The Obligations of the Borrower shall be performed strictly in accordance with the terms of this Section 2.2 under all circumstances, including the following circumstances: (i) any set-off, counterclaim, recoupment, defense or other Obligor andright which the Bank may have against the Borrower or any other Person for any reason whatsoever, or which the Borrower may have against the Bank or any of its Affiliates, or any other Person for any reason whatsoever; (ii) the failure of the Borrower or any other Person to comply, in connection with a Letter of Credit Borrowing or with the extent conditions set forth in Section 2.7.15.2, each Revolving Lender shall assume all risks it being acknowledged that such conditions are not required for the making of the acts, omissions or misuse of any a Letter of Credit Borrowing; (iii) any lack of validity or enforceability of the Letter of Credit; (iv) any claim of breach of warranty that might be made by the Borrower or the Bank against any beneficiary thereof. No Issuer of the Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which the Borrower or the Bank may have at any time against a beneficiary, successor beneficiary any transferee or assignee of the Letter of Credit or the proceeds thereof (except to or any Persons for whom any such transferee may be acting), the extent Bank or its Affiliates or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Borrower or its Subsidiaries and the beneficiary for which the Letter of its own gross negligence, bad faith or willful misconduct) shall be responsible for:
Credit was procured); (av) the form, lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness or legal effect of any Letter of Credit draft, demand, instrument, certificate or any other document submitted by any party presented under or in connection with the application for and issuance of a Letter of Credit, or any fraud or alleged fraud in connection with the Letter of Credit, or the transport of any property or provision of services relating to the Letter of Credit, in each case even if it should in fact prove to be in the Bank or any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have of its Affiliates has been notified thereof);
; (bvi) payment by the form, validity, sufficiency, accuracy, genuineness Bank or legal effect any of any instrument transferring or assigning or purporting to transfer or assign a its Affiliates under the Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with 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) failure terms of the Letter of Credit; (vii) the solvency of, or any acts or omissions by, any beneficiary of any such the Letter of Credit, or any other party Person having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-services relating to the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Cincinnati Financial Corp)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender Borrowers shall assume all risks of the acts, omissions omissions, or misuse of any Letter of Credit by the beneficiary thereof. No Issuer (except to Any action, inaction or omission taken or suffered by the extent Fronting Bank or any of its own gross negligence, bad faith the Fronting Bank's correspondents under or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness in connection with a Letter of Credit or legal effect of any Draft made under any Documentary Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Creditrelating thereto, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof);
(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) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligencein conformity with foreign or domestic laws, bad faith regulations or willful misconduct) customs applicable thereto shall be binding upon each Obligor and each Lender, the Borrowers and shall not put such Issuer place the Fronting Bank or any of its correspondents under any resulting liability to any Obligor or any Lender, as the case may beBorrowers. Without limiting the generality of the foregoing, each Issuer (i) the Fronting Bank and its correspondents may rely on any oral receive, accept or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf pay as complying with the terms of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation Draft under a any Documentary Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonorotherwise in order which may be signed by, or otherwiseissued to, the administrator or any executor of, or the trustee in bankruptcy of, or the receiver for any property of, or other Person or entity acting as the representative or in the place of, such beneficiary or its successors and shall be entitled to reimbursement assigns. The Borrowers covenant that they will not take any steps, issue any instructions to the same extent as if such presentation had initially been honored, together with Fronting Bank or any interest paid by such Issuer; (iv) may of its correspondents or institute any proceedings intended to derogate from the right or ability of the Fronting Bank or its correspondents to honor and pay any drawing that is payable upon presentation of a statement advising negotiation Draft or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform Drafts. Without in any way with limiting the relevant Letter provisions of Credit; (v) may pay Section 4.6, and notwithstanding anything to the contrary contained in this Agreement or in any paying or negotiating bank claiming other Loan Document, each Borrower irrevocably acknowledges and agrees that it rightfully honored is unconditionally liable for all Reimbursement Obligations with respect to each Disbursement (including fees and interest thereon) under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is issued for its account, regardless (in the subject case of such Order, notwithstanding that any drafts or other documents presented in connection with the U.S. Borrower) of whether such Letter of Credit fail to conform was issued in respect of the sourcing or other corporate requirements or needs of the U.S. Borrower or any way with such Letter Subsidiary of Creditthe U.S. Borrower, or otherwise.
Appears in 1 contract
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender Borrower shall assume all risks of the acts, omissions omissions, or misuse of any Letter of Credit by the beneficiary thereof. No Neither any Issuer nor any Lender (except to the extent of its own gross negligence, bad faith negligence or willful misconduct) shall be responsible for:
: (ai) the form, validity, sufficiency, accuracy, genuineness genuineness, or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent fraudulent, or forged forged; (even if such Issuer shall have been notified thereof);
(bii) the form, validity, sufficiency, accuracy, genuineness 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;
; (ciii) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
; (div) errors, omissions, interruptions interruptions, or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipher;
; (ev) any loss or delay in-in the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication Credit or non-application by the beneficiary of any such Letter of Credit of the proceeds thereof; (vi) any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of the Borrower in respect of any drawing under such Letter of Credit; or
(hvii) the existence of any claim, set-off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of any Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuer (if other than the Lender or its Affiliates) or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by the Letter of Credit or any unrelated transaction; (viii) any consequences arising from causes beyond payment by an Issuer under any Letter of Credit against presentation of a draft or certificate that does not strictly comply with the control terms of such Issuerany Letter of Credit; or any payment made by an Issuer under any 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 any Letter of Credit, including any governmental acts and none arising in connection with any insolvency proceeding; or (ix) any other circumstance or happening whatsoever, whether or not similar to any of the above shall affect or impairforegoing, including any other circumstance that might otherwise constitute a defense available to, or prevent the vesting a discharge of, any of such Issuer’s rights the Borrower or powers hereundera guarantor. None of the foregoing shall affect, impair impair, or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and extension, and not in limitation or derogation derogation, of any of the foregoing, any action taken or omitted to be taken by an any Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, the Borrower and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of CreditBorrower.
Appears in 1 contract
Samples: Credit Agreement (W&t Offshore Inc)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor Borrower and, to the extent set forth in Section 2.7.12.7.2, each Revolving Lender shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No L/C Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for, nor shall any of the obligations of the Borrower or any Revolving Lender with respect to any Letter of Credit be affected by, any of the following:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Loan Document, any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof)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 thereof, in whole or in part, which may prove to be invalid or ineffective for any reason;
(c) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraphfacsimile, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-in the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation any other act or omission to act or delay of technical terms;any kind of any L/C Issuer, the Lenders, the Administrative Agent 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 2.7.6, constitute a legal or equitable discharge of the Borrower’s obligations hereunder; or
(g) the misapplication or non-application by the beneficiary existence of any such Letter Default or Event of Credit Default, or the termination of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunderCommitments. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer the L/C Issuers, the Administrative Agent or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, neither the Administrative Agent nor any action taken L/C Issuer or omitted Lender shall have any liability or responsibility by reason of, or in connection with, the form, validity issuance, transfer, payment, non-payment or any other transaction related to be taken any Letter of Credit; provided, however, that the foregoing shall not excuse any L/C Issuer from liability to the Borrower or the Lenders to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by an Issuer the Borrower and the Lenders to the extent permitted by applicable Law) suffered by the Borrower, the Administrative Agent or the Lenders that are caused by such L/C Issuer’s failure to exercise reasonable 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 good faith (and not constituting the absence of gross negligence, bad faith negligence or willful misconduct) misconduct on the part of any L/C Issuer (as determined by a court of competent jurisdiction), such L/C Issuer shall be binding upon deemed to have exercised reasonable care in each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may bedetermination. Without limiting the generality of the foregoing, each Issuer (i) may rely the parties agree that, with respect to documents presented which appear on any oral or other communication believed their face to be in good faith by such Issuer to have been authorized or given by or on behalf compliance with the terms of the applicant for a Letter of Credit, (ii) may honor each L/C Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any presentation notice or information to the contrary, or refuse to accept and make payment upon such documents if the such documents presented appear on their face substantially to comply are not in strict compliance with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Samples: Credit Agreement (Lannett Co Inc)
Nature of Reimbursement Obligations. The Borrowersobligations of the Borrower to reimburse the LC Bank upon a draw under a Letter of Credit, each shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement and under all circumstances, including the following circumstances: (i) any set-off, counterclaim, recoupment, defense or other Obligor andright which the Borrower may have against any Credit Party, the Servicer, an Originator, the Performance Guarantor or any other Person for any reason whatsoever; (ii) the failure of the Borrower or any other Person to comply with the extent conditions set forth in Section 2.7.1, each Revolving Lender shall assume all risks of the acts, omissions or misuse of any Letter this Agreement for requests for Letters of Credit by the beneficiary thereof. No Issuer or otherwise; (except to the extent iii) any lack of its own gross negligence, bad faith validity or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect enforceability of any Letter of Credit or any document submitted set-off, counterclaim, recoupment, defense or other right which the Borrower, the Performance Guarantor, the Servicer, an Originator or any Affiliate thereof on behalf of which a Letter of Credit has been issued may have against any Credit Party or any other Person for any reason whatsoever; (iv) any claim of breach of warranty that might be made by the Borrower, an Originator, the Servicer or any party in connection with Affiliate thereof, or the application for and issuance LC Bank or any Program Participant against the beneficiary of a Letter of Credit, even if it should or the existence of any claim, set-off, defense or other right which the Borrower or, the LC Bank or any Program Participant may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the LC Bank, any Program Participant or any other Person, whether in fact prove to be in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Borrower or all respects invalid, insufficient, inaccurate, fraudulent or forged any Affiliates of the Borrower and the beneficiary for which any Letter of Credit was procured); -34- (even if such Issuer shall have been notified thereof);
(bv) the formlack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or legal effect other document presented under any Letter of Credit, or any instrument transferring such draft, demand, instrument, certificate or assigning other document proving to be forged, fraudulent, invalid, defective or purporting to transfer insufficient in any respect or assign a any statement therein being untrue or inaccurate in any respect, even if the Administrative Agent or, the LC Bank or any Program Participant has been notified thereof; (vi) payment by the LC Bank under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the rights terms of such Letter of Credit; (vii) the solvency of, or benefits thereunder any acts or the proceeds thereof in whole or in partomissions by, which may prove to be invalid or ineffective for any reason;
(c) failure of the beneficiary of any such Letter of Credit, or any other party Person having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order services relating to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iiiviii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of by the LC Bank or any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related LC Bank’s Affiliates to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with issue any Letter of Credit in the form requested by the Borrower; (ix) any Material Adverse Effect; (x) any breach of this Agreement or any other Transaction Document by any party thereto; (xi) the occurrence or continuance of an Insolvency Proceeding with respect to the Borrower, the Performance Guarantor, any Originator or any Affiliate thereof; (xii) the fact that is an Event of Default or an Unmatured Event of Default shall have occurred and be continuing; (xiii) the subject fact that this Agreement or the obligations of such Orderthe Borrower or the Servicer hereunder shall have been terminated; and (xiv) any other circumstance or happening whatsoever, notwithstanding that whether or not similar to any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Creditthe foregoing.
Appears in 1 contract
Samples: Receivables Financing Agreement (Davey Tree Expert Co)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor andas applicable, to the extent set forth in Section 2.7.1, each Revolving Lender shall assume all risks of the acts, omissions omissions, or misuse of any (a) Letter of Credit by the beneficiary thereof and (b) Acceptance by the payee thereof. No Issuer (except to the extent Any action, inaction or omission taken or suffered by either Fronting Bank or any Fronting Bank's correspondents under or in connection with a Letter of its own gross negligenceCredit, bad faith or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Draft made under any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof);
(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) failure of the beneficiary of any such Letter of Credit, Acceptance or any other party to which such Letter of Credit may be transferreddocument relating thereto, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer if in good faith (and not constituting gross negligencein conformity with foreign or domestic laws, bad faith regulations or willful misconduct) customs applicable thereto shall be binding upon each Obligor and each Lender, the applicable Borrowers and shall not put such Issuer place either Fronting Bank or any of its correspondents under any resulting liability to any Obligor or any Lender, as the case may besuch Borrowers. Without limiting the generality of the foregoing, each Issuer (i) Fronting Bank and its correspondents may rely on any oral receive, accept or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf pay as complying with the terms of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation Draft under a any Letter of Credit, whether such dishonor was pursuant to a court orderan Acceptance, to settle or compromise any claim of wrongful dishonorotherwise in order which may be signed by, or otherwiseissued to, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honoredadministrator or any executor of, together with or the trustee in bankruptcy of, or the receiver for any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or paymentproperty of, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately)Person or entity acting as the representative or in the place of, such beneficiary or its successors and shall assigns. The Borrowers covenant that they will not be liable for take any failure steps, issue any instructions to either Fronting Bank or any of its correspondents or institute any such draft proceedings intended to derogate from the right or other document ability of either Fronting Bank or its correspondents to arrive, honor and pay any Draft or to conform Drafts. Without in any way with limiting the relevant Letter provisions of Credit; (v) may pay Section 4.6, and notwithstanding anything to the contrary contained in this Agreement or in any paying or negotiating bank claiming other Trade Document, each Borrower irrevocably acknowledges and agrees that it rightfully honored is unconditionally liable for all Reimbursement Obligations with respect to each Disbursement under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is issued or paid, as the subject case may be, for its account and each payment made on a matured Acceptance created for its account, as applicable (including fees and interest thereon), in each case, regardless (in the case of such Ordereach of the U.S. Borrower, notwithstanding that any drafts or other documents presented in connection with each Warnaco Sub Borrower and the Sub Borrower) whether such Letter of Credit fail to conform was issued or such Advance created in respect of the sourcing or other corporate requirements or needs of the U.S. Borrower, the Sub Borrower or any way with such Letter Subsidiary of Creditthe U.S. Borrower or Sub Borrower, or otherwise.
Appears in 1 contract
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender Borrower shall assume all risks of the acts, omissions omissions, or misuse of any Letter of Credit by the beneficiary thereof. No Neither the Lender nor any Issuer (except to the extent of its own gross negligence, bad faith negligence or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness genuineness, or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent fraudulent, or forged (even if such Issuer shall have been notified thereof)forged;
(b) the form, validity, sufficiency, accuracy, genuineness 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) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions interruptions, or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipher;
(e) any loss or delay in-in the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of CreditCredit or of the proceeds thereof;
(f) errors any change in interpretation the time, manner or place of technical termspayment of, or in any other term of, all or any of the obligations of the Borrower in respect of any Letter of Credit;
(g) the misapplication or non-application by the beneficiary existence of any such claim, set-off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of any Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuer (if other than the Lender or its Affiliates) or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by the Letters of the proceeds of Credit or any drawing under such Letter of Credit; orunrelated transaction;
(h) any consequences arising from causes beyond payment by an Issuer under any Letter of Credit against presentation of a draft or certificate that does not strictly comply with the control terms of such Issuerany Letter of Credit; or any payment made by an Issuer under any 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 any Letter of Credit, including any governmental acts and none arising in connection with any insolvency proceeding; or
(i) any other circumstance or happening whatsoever, whether or not similar to any of the above shall affect or impairforegoing, including any other circumstance that might otherwise constitute a defense available to, or prevent the vesting a discharge of, any of such Issuer’s rights the Borrower or powers hereundera guarantor. None of the foregoing shall affect, impair impair, or prevent the vesting of any of the rights or powers granted to any the Lender or the Issuer or any Revolving Lender hereunder. In furtherance and extension, and not in limitation or derogation derogation, of any of the foregoing, any action taken or omitted to be taken by an the Lender or the Issuer in good faith (and not constituting gross negligence, bad faith negligence or willful misconduct) misconduct shall be binding upon each Obligor and each Lender, the Borrower and shall not put such the Lender or the Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of CreditBorrower.
Appears in 1 contract
Nature of Reimbursement Obligations. The Borrowersobligations of the Borrower to reimburse the LC Bank upon a draw under a Letter of Credit, each shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement and under all circumstances, including the following circumstances: (i) any set-off, counterclaim, recoupment, defense or other Obligor andright which the Borrower may have against any Credit Party, the Servicer, an Originator, the Performance Guarantor or any other Person for any reason whatsoever; (ii) the failure of the Borrower or any other Person to comply with the extent conditions set forth in Section 2.7.1, each Revolving Lender shall assume all risks of the acts, omissions or misuse of any Letter this Agreement for requests for Letters of Credit by the beneficiary thereof. No Issuer or otherwise; (except to the extent iii) any lack of its own gross negligence, bad faith validity or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect enforceability of any Letter of Credit or any document submitted set-off, counterclaim, recoupment, defense or other right which the Borrower, the Performance Guarantor, the Servicer, an Originator or any Affiliate thereof on behalf of which a Letter of Credit has been issued may have against any Credit Party or any other Person for any reason whatsoever; (iv) any claim of breach of warranty that might be made by the Borrower, an Originator, the Servicer or any party in connection with Affiliate thereof, or the application for and issuance LC Bank against the beneficiary of a Letter of Credit, even if it should or the existence of any claim, set-off, defense or other right which the Borrower or the LC Bank may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the LC Bank or any other Person, whether in fact prove to be in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Borrower or all respects invalid, insufficient, inaccurate, fraudulent or forged any Affiliates of the Borrower and the beneficiary for which any Letter of Credit was procured); (even if such Issuer shall have been notified thereof);
(bv) the formlack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or 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) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affectdraft, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoingdemand, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.instrument,
Appears in 1 contract
Samples: Receivables Financing Agreement (Davey Tree Expert Co)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender shall assume all risks Obligations of the acts, omissions or misuse of any Letter of Credit by Borrowers to reimburse the beneficiary thereof. No Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of Agent upon a draw under a Letter of Credit, even if it should shall be absolute, unconditional and irrevocable, and shall be performed strictly in fact prove to be in accordance with the terms of this Section 2.8 under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or all respects invalid, insufficient, inaccurate, fraudulent other right which the Borrower may have against the Agent or forged (even if such Issuer shall have been notified thereof)any other Person for any reason whatsoever;
(bii) the form, validity, sufficiency, accuracy, genuineness or legal effect failure of any instrument transferring Loan Party or assigning or purporting any other Person to transfer or assign comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in Section 2.1 [Revolving Credit Commitments], 2.5 [Revolving Credit Loan Requests], 2.6 [Making Revolving Credit Loans] or the rights 6.2 [Each Additional Loan or benefits thereunder or the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reason;
(c) failure of the beneficiary of any such Letter of Credit] or as otherwise set forth in this Agreement for the making of a Revolving Credit Loan, or any other party to which it being acknowledged that such Letter conditions are not required for the making of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transfereeBorrowing;
(diii) errors, omissions, interruptions any lack of validity or delays in transmission or delivery enforceability of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(fiv) errors the existence of any claim, set-off, defense or other right which any Loan Party or any Bank may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), the Agent or any Bank or any other Person or, whether in interpretation connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between any Loan Party or Subsidiaries of technical termsa Loan Party and the beneficiary for which any Letter of Credit was procured);
(gv) the misapplication any draft, demand, certificate or non-application by the beneficiary of other document presented under any such 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 even if the Agent has been notified thereof;
(vi) payment by the Agent under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not strictly comply with the proceeds terms of any drawing under such Letter of Credit; or;
(hvii) any consequences arising from causes beyond adverse change in the control of such Issuerbusiness, including any governmental acts and none of the above shall affect operations, properties, assets, condition (financial or impair, otherwise) or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting prospects of any Loan Party or Subsidiaries of a Loan Party;
(viii) any breach of this Agreement or any other Loan Document by any party thereto;
(ix) the rights occurrence or powers granted continuance of an Insolvency Proceeding with respect to any Issuer Loan Party;
(x) the fact that an Event of Default or a Potential Default shall have occurred and be continuing;
(xi) the fact that the Expiration Date shall have passed or this Agreement or the Commitments hereunder shall have been terminated; and
(xii) any Revolving Lender hereunder. In furtherance and other circumstance or happening whatsoever, whether or not in limitation or derogation of similar to any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Original Revolving Loan Lender or each Extended Revolving Loan Lender, as applicable, shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No Issuer (except to the extent of its own gross negligence, bad faith negligence or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof);
(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) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts acts, and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Loan Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith negligence or willful misconduct) shall be binding upon each Obligor and each Lendersuch Secured Party, and shall not put such Issuer under any resulting liability to any Obligor or any LenderSecured Party, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Samples: Credit Agreement (Ferro Corp)
Nature of Reimbursement Obligations. The Borrowersobligations of the Borrower to reimburse the LC Bank upon a draw under a Letter of Credit, each shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement and under all circumstances, including the following circumstances:
(i) any set‑off, counterclaim, recoupment, defense or other Obligor andright which the Borrower may have against any Credit Party, the Servicer, an Originator, the Performance Guarantor or any other Person for any reason whatsoever;
(ii) the failure of the Borrower or any other Person to comply with the extent conditions set forth in Section 2.7.1, each Revolving Lender shall assume all risks of the acts, omissions or misuse of any Letter this Agreement for requests for Letters of Credit by the beneficiary thereof. No Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for:otherwise;
(aiii) the form, validity, sufficiency, accuracy, genuineness any lack of validity or legal effect enforceability of any Letter of Credit or any document submitted set‑off, counterclaim, recoupment, defense or other right which the Borrower, the Performance Guarantor, the Servicer, an Originator or any Affiliate thereof on behalf of which a Letter of Credit has been issued may have against any Credit Party or any other Person for any reason whatsoever;
(iv) any claim of breach of warranty that might be made by the Borrower, an Originator, the Servicer or any party in connection with Affiliate thereof, or the application for and issuance LC Bank against the beneficiary of a Letter of Credit, even if it should or the existence of any claim, set‑off, defense or other right which the Borrower or the LC Bank may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the LC Bank or any other Person, whether in fact prove to be in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Borrower or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereofany Affiliates of the Borrower and the beneficiary for which any Letter of Credit was procured);
(bv) the formlack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or legal effect other document presented under any Letter of Credit, or any instrument transferring such draft, demand, instrument, certificate or assigning other document proving to be forged, fraudulent, invalid, defective or purporting to transfer insufficient in any respect or assign a any statement therein being untrue or inaccurate in any respect, even if the Administrative Agent or the LC Bank has been notified thereof;
(vi) payment by the LC Bank under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the rights or benefits thereunder or the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reasonterms of such Letter of Credit;
(cvii) failure of the solvency of, or any acts or omissions by, any beneficiary of any such Letter of Credit, or any other party Person having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order services relating to make a Disbursement under a Letter of Credit;
(fviii) errors any failure by the LC Bank or any of the LC Bank’s Affiliates to issue any Letter of Credit in interpretation of technical termsthe form requested by the Borrower;
(gix) any Material Adverse Effect;
(x) any breach of this Agreement or any other Transaction Document by any party thereto;
(xi) the misapplication occurrence or non-application by continuance of an Insolvency Proceeding with respect to the beneficiary Borrower, the Performance Guarantor, any Originator or any Affiliate thereof;
(xii) the fact that an Event of any such Letter Default or an Unmatured Event of Credit Default shall have occurred and be continuing;
(xiii) the fact that this Agreement or the obligations of the proceeds of any drawing under such Letter of CreditBorrower or the Servicer hereunder shall have been terminated; orand
(hxiv) any consequences arising from causes beyond the control of such Issuerother circumstance or happening whatsoever, including any governmental acts and none of the above shall affect whether or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted not similar to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Samples: Receivables Financing Agreement (Davey Tree Expert Co)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender shall assume all risks Obligations of the acts, omissions or misuse of any Letter of Credit by ----------------------------------- Borrower to reimburse the beneficiary thereof. No Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of Bank upon a draw under a Letter of Credit, even if it should shall be absolute, unconditional and irrevocable, and shall be performed strictly in fact prove to be in accordance with the terms of this Section 2.9 under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or all respects invalid, insufficient, inaccurate, fraudulent other right which the Bank may have against the Borrower or forged (even if such Issuer shall have been notified thereof)any other Person for any reason whatsoever;
(bii) the form, validity, sufficiency, accuracy, genuineness any lack of validity or legal effect enforceability 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) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(fiii) errors the existence of any claim, set-off, defense or other right which the Bank may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), the Bank or any other Person or, whether in interpretation connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Borrower or and the beneficiary for which any Letter of technical termsCredit was procured);
(giv) the misapplication any draft, demand, certificate or non-application by the beneficiary of other document presented under any such 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 even if the Bank has been notified thereof;
(v) payment by the Bank under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the proceeds terms of any drawing under such Letter of Credit; or;
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle any adverse change in the business, operations, properties, assets, condition (financial or adjust otherwise) or prospects of the Borrower;
(vii) any claim breach of this Agreement or demand made on such Issuer any other Loan Document by any party thereto;
(viii) the occurrence or continuance of any bankruptcy or insolvency proceeding as described in any way related Section 7.5 with respect to any order issued at Borrower;
(ix) the applicant’s request to fact that an air carrier, a letter Event of guarantee Default shall have occurred and be continuing; and
(x) the fact that the Revolving Credit Expiration Date shall have passed or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Creditthis Agreement shall have been terminated.
Appears in 1 contract
Samples: Loan Agreement (Itxc Corp)
Nature of Reimbursement Obligations. The Borrowersobligations of the Seller to reimburse the applicable LC Bank upon a draw under a Letter of Credit, each shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article I under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other Obligor andright which the Seller may have against such LC Bank, the Administrator, the Purchaser Agents, the Purchasers or any other Person for any reason whatsoever;
(ii) the failure of the Seller or any other Person to comply with the extent conditions set forth in Section 2.7.1this Agreement for the making of a purchase, each Revolving Lender shall assume all risks of the actsreinvestments, omissions or misuse of any Letter requests for Letters of Credit by the beneficiary thereof. No Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for:otherwise;
(aiii) the form, validity, sufficiency, accuracy, genuineness any lack of validity or legal effect enforceability of any Letter of Credit or any document submitted set-off, counterclaim, recoupment, defense or other right which Seller or an Originator on behalf of which a Letter of Credit has been issued may have against such LC Bank, the Administrator, any Purchaser, any Purchaser Agent or any other Person for any reason whatsoever;
(iv) any claim of breach of warranty that might be made by any party in connection with the application for and issuance Seller or such LC Bank against the beneficiary of a Letter of Credit, even if it should or the existence of any claim, set-off, defense or other right which the Seller or such LC Bank may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), such LC Bank, the 740811803 17540157 Administrator, any Purchaser or any Purchaser Agent or any other Person, whether in fact prove to be in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Seller or all respects invalid, insufficient, inaccurate, fraudulent any Subsidiaries of the Seller or forged (even if such Issuer shall have been notified thereofany Affiliates of the Seller and the beneficiary for which any Letter of Credit was procured);
(bv) the formlack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or legal effect other document presented under any Letter of Credit, or any instrument transferring such draft, demand, instrument, certificate or assigning other document proving to be forged, fraudulent, invalid, defective or purporting to transfer insufficient in any respect or assign a any statement therein being untrue or inaccurate in any respect, even if the Administrator or such LC Bank has been notified thereof;
(vi) payment by such LC Bank under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the rights terms of such Letter of Credit other than as a result of the gross negligence or benefits thereunder or the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reasonwillful misconduct of such LC Bank;
(cvii) failure of the solvency of, or any acts or omissions by, any beneficiary of any such Letter of Credit, or any other party Person having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order services relating to make a Disbursement under a Letter of Credit;
(fviii) errors any failure by such LC Bank or any of such LC Bank’s Affiliates to issue any Letter of Credit in interpretation of technical terms;
(g) the misapplication or non-application form requested by the beneficiary Seller, unless such LC Bank has received written notice from the Seller of any such failure within three Business Days after such LC Bank shall have furnished the Seller a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of the proceeds of any drawing under such Letter of Credit; ornotice;
(hix) any consequences arising from causes beyond Material Adverse Effect on the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting ofSeller, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer Originator or any Revolving Lender hereunder. In furtherance Affiliates thereof;
(x) any breach of this Agreement or any Transaction Document by any party thereto;
(xi) the occurrence or continuance of an Insolvency Proceeding with respect to the Seller, any Originator or any Affiliate thereof;
(xii) the fact that a Termination Event or an Unmatured Termination Event shall have occurred and be continuing;
(xiii) the fact that this Agreement or the obligations of Seller or Servicer hereunder shall have been terminated; and
(xiv) any other circumstance or happening whatsoever, whether or not in limitation or derogation of similar to any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender shall assume all risks Obligations of the actsBorrowers to reimburse the Lender upon a drawing under a Letter of Credit shall be absolute, omissions unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Section 2.7 under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or misuse other right which the Lender may have against the Borrowers or any other Person for any reason whatsoever, or which any Loan Party may have against the Lender or any of its Affiliates or any other Person for any reason whatsoever;
(ii) any lack of validity or enforceability of any Letter of Credit, the issuance of which was requested by the Borrowers;
(iii) any claim of breach of warranty that might be made by any Loan Party or the Lender against any beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any Loan Party or the Lender may have at any time against a beneficiary, successor beneficiary, any transferee or assignee of any Letter of Credit by or the proceeds thereof (or any Persons for whom any such transferee may be acting), the Lender or its Affiliates or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between any Loan Party or Subsidiaries of a Loan Party and the beneficiary thereof. No Issuer (except to the extent for which any Letter of its own gross negligence, bad faith or willful misconduct) shall be responsible for:Credit was procured);
(aiv) the form, lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or legal effect of other document presented under or in connection with any Letter of Credit Credit, or any document submitted by any party fraud or alleged fraud in connection with any Letter of Credit, or the application for and issuance transport of any property or provision of services relating to a Letter of Credit, in each case even if it should in fact prove to be in the Lender or any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have of its Affiliates has been notified thereof);
(bv) payment by the form, validity, sufficiency, accuracy, genuineness Lender or legal effect any of its Affiliates under any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the rights or benefits thereunder or the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reasonterms of such Letter of Credit;
(cvi) failure of the solvency of, or any acts or omissions by, any beneficiary of any such Letter of Credit, or any other party Person having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order services relating to make a Disbursement under a Letter of Credit;
(fvii) errors in interpretation of technical terms;
(g) the misapplication or non-application any failure by the beneficiary Lender or any of its Affiliates to issue any such Letter of Credit in the form requested by any Loan Party, unless the Lender has received written notice from such Loan Party of such failure, has had sufficient time and the proceeds of any drawing under beneficiary thereof has agreed to amend such Letter of Credit; or, and no drawing has been made thereon;
(hviii) any consequences arising from causes beyond adverse change in the control of such Issuerbusiness, including any governmental acts and none of the above shall affect operations, properties, assets, condition (financial or impair, otherwise) or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting prospects of any Loan Party or Subsidiaries of a Loan Party;
(ix) any breach of this Agreement or any other Loan Document by any party thereto;
(x) the rights occurrence or powers granted continuance of an Insolvency Proceeding with respect to any Issuer Loan Party;
(xi) the fact that an Event of Default or a Potential Default shall have occurred and be continuing;
(xii) the fact that the Expiration Date shall have passed or this Agreement or the Revolving Credit Commitment hereunder shall have been terminated; and
(xiii) any Revolving Lender hereunder. In furtherance and other circumstance or happening whatsoever, whether or not in limitation or derogation of similar to any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Nature of Reimbursement Obligations. The BorrowersEach LC Bank's obligation in accordance with this Agreement to make advances as a result of a drawing under one of its Letters of Credit and the obligations of the Seller to reimburse such an LC Bank upon a draw under such a Letter of Credit, each shall be performed strictly in accordance with the terms of this Article I, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other Obligor andright which any Person may have against such LC Bank, the related Funding Agent or any other Purchaser in such LC Bank's Purchaser Group or any other Person for any reason whatsoever;
(ii) the failure of the Seller or any other Person to comply with the extent conditions set forth in Section 2.7.1this Agreement for the making of a Funded Purchase, each Revolving Lender shall assume all risks reinvestments, requests for Letters of Credit or otherwise, it being acknowledged that such conditions are not required for the actsmaking of participation advances hereunder;
(iii) any lack of validity or enforceability of any Letter of Credit;
(iv) any claim of breach of warranty that might be made by the Seller or such LC Bank against the beneficiary of a Letter of Credit, omissions or misuse the existence of any claim, set-off, defense or other right which the Seller or such LC Bank may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit by or the proceeds thereof (or any Persons for whom any such transferee may be acting), such LC Bank or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Seller or any Subsidiaries of the Seller or any Affiliates of the Seller and the beneficiary thereof. No Issuer (except to the extent for which any Letter of its own gross negligence, bad faith or willful misconduct) shall be responsible for:Credit was procured);
(av) the formlack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or legal effect other document presented under any Letter of Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, even if such LC Bank or the related Funding Agent has been notified thereof;
(vi) payment by the LC Bank under any Letter of Credit against presentation of a demand, draft or any certificate or other document submitted by any party in connection which does not comply with the application for and issuance terms of a such Letter of Credit, even if it should in fact prove to be in any Credit other than as a result of the gross negligence or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof)willful misconduct of the LC Bank;
(bvii) the formsolvency of, validityor any acts or omissions by, 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) failure of the beneficiary of any such Letter of Credit, or any other party Person having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order services relating to make a Disbursement under a Letter of Credit;
(fviii) errors in interpretation of technical terms;
(g) the misapplication or non-application any failure by the beneficiary LC Bank or any of the LC Bank's Affiliates to issue any Letter of Credit in the form requested by the Seller, unless the LC Bank has received written notice from the Seller of such failure within three Business Days after the LC Bank shall have furnished the Seller a copy of such Letter of Credit of the proceeds of any and such error is material and no drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted has been made thereon prior to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement notice;
(even if such statement indicates ix) any Material Adverse Effect on the Seller, the Originator or any Affiliates thereof;
(x) any breach of this Agreement or any Transaction Document by any party thereto;
(xi) the occurrence or continuance of an Event of Bankruptcy with respect to the Seller, the Originator or any Affiliate thereof;
(xii) the fact that a draft Termination Event or other document is being delivered separately), an Unmatured Termination Event shall have occurred and be continuing; and
(xiii) the fact that this Agreement or the obligations of Seller or Servicer hereunder shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credithave been terminated.
Appears in 1 contract
Samples: Receivables Purchase Agreement (United States Steel Corp)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender Borrower shall assume all risks of the acts, omissions omissions, or misuse of any Letter of Credit by the beneficiary thereof. No Neither the Lender nor any Issuer (except to the extent of its own gross negligence, bad faith negligence or willful wilful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness genuineness, or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent fraudulent, or forged (even if such Issuer shall have been notified thereof)forged;
(b) the form, validity, sufficiency, accuracy, genuineness 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) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions interruptions, or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipher;
(e) any loss or delay in-in the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of CreditCredit or of the proceeds thereof;
(f) errors any change in interpretation the time, manner or place of technical termspayment of, or in any other term of, all or any of the obligations of the Borrower in respect of any Letter of Credit;
(g) the misapplication or non-application by the beneficiary existence of any such claim, set-off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of any Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuer (if other than the Lender or its Affiliates) or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by the Letters of the proceeds of Credit or any drawing under such Letter of Credit; orunrelated transaction;
(h) any consequences arising from causes beyond payment by an Issuer under any Letter of Credit against presentation of a draft or certificate that does not strictly comply with the control terms of such Issuerany Letter of Credit; or any payment made by an Issuer under any 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 any Letter of Credit, including any governmental acts and none arising in connection with any insolvency proceeding; or
(i) any other circumstance or happening whatsoever, whether or not similar to any of the above shall affect or impairforegoing, including any other circumstance that might otherwise constitute a defense available to, or prevent the vesting a discharge of, any of such Issuer’s rights the Borrower or powers hereundera guarantor. None of the foregoing shall affect, impair impair, or prevent the vesting of any of the rights or powers granted to any the Lender or the Issuer or any Revolving Lender hereunder. In furtherance and extension, and not in limitation or derogation derogation, of any of the foregoing, any action taken or omitted to be taken by an the Lender or the Issuer in good faith (and not constituting gross negligence, bad faith negligence or willful misconduct) misconduct shall be binding upon each Obligor and each Lender, the Borrower and shall not put such the Lender or the Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of CreditBorrower.
Appears in 1 contract
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender Borrower shall assume all risks of the acts, omissions omissions, or misuse of any Letter of Credit by the beneficiary thereof. No Neither any Issuer nor any Lender (except to the extent of its own gross negligence, bad faith negligence or willful wilful misconduct) shall be responsible for:
: (ai) the form, validity, sufficiency, accuracy, genuineness genuineness, or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent fraudulent, or forged forged; (even if such Issuer shall have been notified thereof);
(bii) the form, validity, sufficiency, accuracy, genuineness 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;
; (ciii) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
; (div) errors, omissions, interruptions interruptions, or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipher;
; (ev) any loss or delay in-in the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication Credit or non-application by the beneficiary of any such Letter of Credit of the proceeds thereof; (vi) any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of the Borrower in respect of any drawing under such Letter of Credit; or
(hvii) the existence of any claim, set-off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of any Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuer (if other than the Lender or its Affiliates) or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by the Letter of Credit or any unrelated transaction; (viii) any consequences arising from causes beyond payment by an Issuer under any Letter of Credit against presentation of a draft or certificate that does not strictly comply with the control terms of such Issuerany Letter of Credit; or any payment made by an Issuer under any 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 any Letter of Credit, including any governmental acts and none arising in connection with any insolvency proceeding; or (ix) any other circumstance or happening whatsoever, whether or not similar to any of the above shall affect or impairforegoing, including any other circumstance that might otherwise constitute a defense available to, or prevent the vesting a discharge of, any of such Issuer’s rights the Borrower or powers hereundera guarantor. None of the foregoing shall affect, impair impair, or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and extension, and not in limitation or derogation derogation, of any of the foregoing, any action taken or omitted to be taken by an any Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, the Borrower and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of CreditBorrower.
Appears in 1 contract
Samples: Credit Agreement (W&t Offshore Inc)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor andas applicable, to the extent set forth in Section 2.7.1, each Revolving Lender shall assume all risks of the acts, omissions omissions, or misuse of any (a) Letter of Credit by the beneficiary thereof and (b) Acceptance by the payee thereof. No Issuer (except to Any action, inaction or omission taken or suffered by the extent Fronting Bank or any of its own gross negligencethe Fronting Bank's correspondents under or in connection with a Letter of Credit, bad faith or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Draft made under any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof);
(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) failure of the beneficiary of any such Letter of Credit, Acceptance or any other party to which such Letter of Credit may be transferreddocument relating thereto, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer if in good faith (and not constituting gross negligencein conformity with foreign or domestic laws, bad faith regulations or willful misconduct) customs applicable thereto shall be binding upon each Obligor and each Lender, the applicable Borrowers and shall not put such Issuer place the Fronting Bank or any of its correspondents under any resulting liability to any Obligor or any Lender, as the case may besuch Borrowers. Without limiting the generality of the foregoing, each Issuer (i) the Fronting Bank and its correspondents may rely on any oral receive, accept or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf pay as complying with the terms of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation Draft under a any Letter of Credit, whether such dishonor was pursuant to a court orderan Acceptance, to settle or compromise any claim of wrongful dishonorotherwise in order which may be signed by, or otherwiseissued to, the administrator or any executor of, or the trustee in bankruptcy of, or the receiver for any property of, or other Person or entity acting as the representative or in the place of, such beneficiary or its successors and shall be entitled to reimbursement assigns. The Borrowers covenant that they will not take any steps, issue any instructions to the same extent as if such presentation had initially been honored, together with Fronting Bank or any interest paid by such Issuer; (iv) may of its correspondents or institute any proceedings intended to derogate from the right or ability of the Fronting Bank or its correspondents to honor and pay any drawing that is payable upon presentation of a statement advising negotiation Draft or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform Drafts. Without in any way with limiting the relevant Letter provisions of Credit; (v) may pay Section 4.6, and notwithstanding anything to the contrary contained in this Agreement or in any paying or negotiating bank claiming other Loan Document, each Borrower irrevocably acknowledges and agrees that it rightfully honored is unconditionally liable for all Reimbursement Obligations with respect to each Disbursement under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is issued or paid, as the subject case may be, for its account and each payment made on a matured Acceptance created for its account, as applicable (including fees and interest thereon), in each case, regardless (in the case of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter each of Credit fail to conform in any way with such Letter of Credit.the U.S. Borrower,
Appears in 1 contract
Nature of Reimbursement Obligations. The BorrowersObligations of the Borrower to reimburse the Bank upon a draw under the Letter of Credit, each shall be absolute, unconditional and irrevocable. The Obligations of the Borrower shall be performed strictly in accordance with the terms of this Section 2.2 under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other Obligor andright which the Bank may have against the Borrower or any other Person for any reason whatsoever, or which the Borrower may have against the Bank or any of its Affiliates, or any other Person for any reason whatsoever;
(ii) the failure of the Borrower or any other Person to comply, in connection with a Letter of Credit Borrowing or with the extent conditions set forth in Section 2.7.15.2, each Revolving Lender shall assume all risks it being acknowledged that such conditions are not required for the making of the acts, omissions or misuse of any a Letter of Credit Borrowing;
(iii) any lack of validity or enforceability of the Letter of Credit;
(iv) any claim of breach of warranty that might be made by the Borrower or the Bank against any beneficiary thereof. No Issuer of the Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which the Borrower or the Bank may have at any time against a beneficiary, successor beneficiary any transferee or assignee of the Letter of Credit or the proceeds thereof (except to or any Persons for whom any such transferee may be acting), the extent Bank or its Affiliates or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Borrower or its Subsidiaries and the beneficiary for which the Letter of its own gross negligence, bad faith or willful misconduct) shall be responsible for:Credit was procured);
(av) the form, lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness or legal effect of any Letter of Credit draft, demand, instrument, certificate or any other document submitted by any party presented under or in connection with the application for and issuance of a Letter of Credit, or any fraud or alleged fraud in connection with the Letter of Credit, or the transport of any property or provision of services relating to the Letter of Credit, in each case even if it should in fact prove to be in the Bank or any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have of its Affiliates has been notified thereof);
(bvi) payment by the form, validity, sufficiency, accuracy, genuineness Bank or legal effect any of any instrument transferring or assigning or purporting to transfer or assign a its Affiliates under the Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the rights or benefits thereunder or terms of the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reasonLetter of Credit;
(cvii) failure the solvency of, or any acts or omissions by, any beneficiary of the beneficiary of any such Letter of Credit, or any other party Person having a role in any transaction or obligation relating to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transfereethe existence, nature, quality, quantity, condition, value or any dispute between or among the Borrowers and any beneficiary other characteristic of any Letter of Credit property or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-services relating to the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(fviii) errors any failure by the Bank or any of its Affiliates to issue the Letter of Credit in interpretation the form requested by the Borrower, unless the Bank has received written notice from the Borrower of technical termssuch failure within three (3) Business Days after the Bank shall have furnished the Borrower a copy of the Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(gix) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Borrower or any of its Subsidiaries;
(x) any breach of this Agreement or any other FAL LC Document by any party thereto;
(xi) the misapplication occurrence or non-application by continuance of an Insolvency Proceeding with respect to the beneficiary Borrower;
(xii) the fact that an Event of Default or a Potential Default shall have occurred and be continuing;
(xiii) the fact that the Expiration Date shall have passed or this Agreement or the LC Commitment hereunder shall have been terminated;
(xiv) any such drawing of the Letter of Credit by Lloyd's contrary to the terms of the proceeds of Comfort Letter, the Membership Byelaws or any drawing under such Letter of Creditother agreement to which Lloyd's is bound; orand
(hxv) any consequences arising from causes beyond the control of such Issuerother circumstance or happening whatsoever, including any governmental acts and none of the above shall affect whether or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted not similar to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Cincinnati Financial Corp)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender shall Borrower will assume all risks of the acts, omissions omissions, or misuse of any Letter of Credit by the beneficiary thereof. No Issuer (except to Any action, inaction or omission taken or suffered by the extent Fronting Bank or any of its own gross negligencethe Fronting Bank's correspondents under or in connection with a Letter of Credit, bad faith or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Draft made under any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Creditrelating thereto, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof);
(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) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligencein conformity with foreign or domestic laws, bad faith regulations or willful misconduct) shall customs applicable thereto will be binding upon each Obligor the Borrower and each Lender, and shall will not put such Issuer place the Fronting Bank or any of its correspondents under any resulting liability to any Obligor or any Lender, as the case may beBorrower. Without limiting the generality of the foregoing, each Issuer (i) the Fronting Bank and its correspondents may rely on any oral receive, accept or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf pay as complying with the terms of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation Draft under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is otherwise in order which may be signed by, or issued to, the subject of such Orderadministrator or any executor of, notwithstanding that or the trustee in bankruptcy of, or the receiver for any drafts property of, or other documents presented Person or entity acting as the representative or in connection the place of, such beneficiary or its successors and assigns. The Borrower covenants that it will not take any steps, issue any instructions to the Fronting Bank or any of its correspondents or institute any proceedings intended to derogate from the right or ability of the Fronting Bank or its correspondents to honor and pay any Draft or Drafts. Without in any way limiting the provisions of Section 4.6, and notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, the Borrower irrevocably acknowledges and agrees that it is unconditionally liable for all Reimbursement Obligations with respect to each Disbursement under each Letter of Credit issued or paid, as the case may be, for its account (including fees and interest thereon), in each case, regardless whether such Letter of Credit fail to conform was issued or such Loan created in respect of the sourcing or other corporate requirements or needs of the Borrower or any way with such Letter wholly-owned Subsidiary of Creditthe Borrower, or otherwise.
Appears in 1 contract
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender Borrower shall assume all risks of the acts, omissions omissions, or misuse of any Letter of Credit by the beneficiary thereof. No Issuer (except to Any action, inaction or omission taken or suffered by the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit Fronting Bank or any document submitted by any party of the Fronting Bank's correspondents under or in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof);
(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) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, Draft made thereunder or any such transfereedocument relating thereto, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer if in good faith (and not constituting gross negligencein conformity with foreign or domestic laws, bad faith regulations or willful misconduct) customs applicable thereto shall be binding upon each Obligor and each Lender, the Borrower and shall not put such Issuer place the Fronting Bank or any of its correspondents under any resulting liability to any Obligor or any Lender, as the case may beBorrower. Without limiting the generality of the foregoing, each Issuer (i) the Fronting Bank and its correspondents may rely on any oral receive, accept or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf pay as complying with the terms of the applicant for a Letter of Credit, (ii) any Draft thereunder, otherwise in order which may honor be signed by, or issued to, the administrator or any presentation if executor of, or the documents presented appear on their face substantially trustee in bankruptcy of, or the receiver for any property of, or other Person or entity acting as the representative or in the place of, such beneficiary or its successors and assigns. The Borrower covenants that it will not take any steps, issue any instructions to comply with the terms and conditions Fronting Bank or any of its correspondents or institute any proceedings intended to derogate from the right or ability of the relevant Letter Fronting Bank or its correspondents to honor and pay any Draft or Drafts. Without in any way limiting the provisions of Credit; Section 4.6, and notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, the Borrower irrevocably acknowledges and agrees that it is unconditionally liable for all Reimbursement Obligations with respect to each Disbursement (iiiincluding fees and interest thereon) may honor a previously dishonored presentation under a each Letter of Credit, regardless of whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform was issued in respect of the sourcing or other corporate requirements or needs of the Borrower or any way with such Letter Subsidiary of Creditthe Borrower, or otherwise.
Appears in 1 contract
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender Borrower shall assume all risks of the acts, omissions omissions, or misuse of any Letter of Credit by the beneficiary thereof. No Neither the Lender nor any Issuer (except to the extent of its own gross negligence, bad faith negligence or willful misconduct) shall be responsible for:
: (a) ai the form, validity, sufficiency, accuracy, genuineness genuineness, or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent fraudulent, or forged forged; (even if such Issuer shall have been notified thereof);
(b) bi the form, validity, sufficiency, accuracy, genuineness 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) ci failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
; (d) di errors, omissions, interruptions interruptions, or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex telex, facsimile or otherwise, whether or not they be in cipher;
; (e) ei any loss or delay in-in the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication Credit or non-application by the beneficiary of any such Letter of Credit of the proceeds thereof; (fi any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of the Borrower in respect of any drawing under such Letter of Credit; or
(hgi the existence of any claim, set-off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of any Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuer (if other than the Lender or its Affiliates) or any consequences arising from causes beyond other Person, whether in connection with this Agreement, the control transactions contemplated hereby or by the Letters of such IssuerCredit or any unrelated transaction; (hi any payment by an Issuer under any Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of any Letter of Credit; or any payment made by an Issuer under any 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 any Letter of Credit, including any governmental acts and none arising in connection with any insolvency proceeding; or (ii any other circumstance or happening whatsoever, whether or not similar to any of the above shall affect or impairforegoing, including any other circumstance that might otherwise constitute a defense available to, or prevent the vesting a discharge of, any of such Issuer’s rights the Borrower or powers hereundera guarantor. None of the foregoing shall affect, impair impair, or prevent the vesting of any of the rights or powers granted to any the Lender or the Issuer or any Revolving Lender hereunder. In furtherance and extension, and not in limitation or derogation derogation, of any of the foregoing, any action taken or omitted to be taken by an the Lender or the Issuer in good faith (and not constituting gross negligence, bad faith negligence or willful misconduct) misconduct shall be binding upon each Obligor and each Lender, the Borrower and shall not put such the Lender or the Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of CreditBorrower.
Appears in 1 contract
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Lender shall assume all risks Obligations of the acts, omissions or misuse of any Letter of Credit by Borrowers to reimburse the beneficiary thereof. No Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of Administrative Agent upon a draw under a Letter of Credit, even if it should shall be absolute, unconditional and irrevocable, and shall be performed strictly in fact prove to be in accordance with the terms of this Section 2.8 under all circumstances, irrespective of any of the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or all respects invalid, insufficient, inaccurate, fraudulent other right which the Borrower may have against the Administrative Agent or forged (even if such Issuer shall have been notified thereof)any other Person for any reason whatsoever;
(bii) the form, validity, sufficiency, accuracy, genuineness or legal effect failure of any instrument transferring Loan Party or assigning or purporting any other Person to transfer or assign comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in Section 2.1 [Revolving Credit Commitments], 2.5 [Revolving Credit Loan Requests], 2.6 [Making Revolving Credit Loans] or the rights 7.2 [Each Additional Loan or benefits thereunder or the proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reason;
(c) failure of the beneficiary of any such Letter of Credit] or as otherwise set forth in this Agreement for the making of a Revolving Credit Loan, or any other party to which it being acknowledged that such Letter conditions are not required for the making of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transfereeBorrowing;
(diii) errors, omissions, interruptions any lack of validity or delays in transmission or delivery enforceability of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(fiv) errors the existence of any claim, set-off, defense or other right which any Loan Party or any Bank may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), the Administrative Agent or any Bank or any other Person or, whether in interpretation connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between any Loan Party or Subsidiaries of technical termsa Loan Party and the beneficiary for which any Letter of Credit was procured); CREDIT AGREEMENT
(v) 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 even if the Administrative Agent has been notified thereof;
(gvi) the misapplication or non-application payment by the beneficiary of Administrative Agent under any such Letter of Credit against presentation of a demand, draft or certificate or other document which does not strictly comply with the proceeds terms of any drawing under such Letter of Credit;
(vii) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Loan Party or Subsidiaries of a Loan Party;
(viii) any breach of this Agreement or any other Loan Document by any party thereto;
(ix) the occurrence or continuance of an Insolvency Proceeding with respect to any Loan Party;
(x) the fact that an Event of Default or a Potential Default shall have occurred and be continuing;
(xi) the fact that the Revolving Credit Expiration Date shall have passed or this Agreement or the Commitments hereunder shall have been terminated; or
(hxii) any consequences arising from causes beyond the control of such Issuerother circumstance or happening whatsoever, including any governmental acts and none of the above shall affect whether or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted not similar to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Nature of Reimbursement Obligations. The Borrowers, each other Obligor and, to the extent set forth in Section 2.7.1, each Revolving Loan Lender shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No Issuer (except to the extent of its own gross negligence, bad faith negligence or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof);
(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) failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer in good faith (and not constituting gross negligence, bad faith or willful misconduct) shall be binding upon each Obligor and each Lender, and shall not put such Issuer under any resulting liability to any Obligor or any Lender, as the case may be. Without limiting the generality of the foregoing, each Issuer (i) may rely on any oral or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by such Issuer; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
Appears in 1 contract
Samples: Credit Agreement (Ferro Corp)
Nature of Reimbursement Obligations. The Borrowers, each other Obligor andas applicable, to the extent set forth in Section 2.7.1, each Revolving Lender shall assume all risks of the acts, omissions omissions, or misuse of any (a) Letter of Credit by the beneficiary thereof and (b) Acceptance by the payee thereof. No Issuer (except to Any action, inaction or omission taken or suffered by the extent Fronting Bank or any of its own gross negligencethe Fronting Bank's correspondents under or in connection with a Letter of Credit, bad faith or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Draft made under any Letter of Credit or any document submitted by any party in connection with the application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if such Issuer shall have been notified thereof);
(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) failure of the beneficiary of any such Letter of Credit, Acceptance or any other party to which such Letter of Credit may be transferreddocument relating thereto, to comply fully with any conditions required in order to demand payment under a Letter of Credit or any other claim of the Borrowers against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or any such transferee;
(d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(e) any loss or delay in-the transmission or otherwise of any document or draft required in order to make a Disbursement under a Letter of Credit;
(f) errors in interpretation of technical terms;
(g) the misapplication or non-application by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(h) any consequences arising from causes beyond the control of such Issuer, including any governmental acts and none of the above shall affect or impair, or prevent the vesting of, any of such Issuer’s rights or powers hereunder. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to any Issuer or any Revolving Lender hereunder. In furtherance and not in limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an Issuer if in good faith (and not constituting gross negligencein conformity with foreign or domestic laws, bad faith regulations or willful misconduct) customs applicable thereto shall be binding upon each Obligor and each Lender, the applicable Borrowers and shall not put such Issuer place the Fronting Bank or any of its correspondents under any resulting liability to any Obligor or any Lender, as the case may besuch Borrowers. Without limiting the generality of the foregoing, each Issuer (i) the Fronting Bank and its correspondents may rely on any oral receive, accept or other communication believed in good faith by such Issuer to have been authorized or given by or on behalf pay as complying with the terms of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation Draft under a any Letter of Credit, whether such dishonor was pursuant to a court orderan Acceptance, to settle or compromise any claim of wrongful dishonorotherwise in order which may be signed by, or otherwiseissued to, the administrator or any executor of, or the trustee in bankruptcy of, or the receiver for any property of, or other Person or entity acting as the representative or in the place of, such beneficiary or its successors and shall be entitled to reimbursement assigns. The Borrowers covenant that they will not take any steps, issue any instructions to the same extent as if such presentation had initially been honored, together with Fronting Bank or any interest paid by such Issuer; (iv) may of its correspondents or institute any proceedings intended to derogate from the right or ability of the Fronting Bank or its correspondents to honor and pay any drawing that is payable upon presentation of a statement advising negotiation Draft or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform Drafts. Without in any way with limiting the relevant Letter provisions of Credit; (v) may pay Section 4.6, and notwithstanding anything to the contrary contained in this Agreement or in any paying or negotiating bank claiming other Loan Document, each Borrower irrevocably acknowledges and agrees that it rightfully honored is unconditionally liable for all Reimbursement Obligations with respect to each Disbursement under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on such Issuer in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in connection with any Letter of Credit that is issued or paid, as the subject case may be, for its account and each payment made on a matured Acceptance created for its account, as applicable (including fees and interest thereon), in each case, regardless (in the case of such Ordereach of the U.S. Borrower, notwithstanding that any drafts or other documents presented in connection with each Warnaco Sub Borrower and the Sub Borrower) whether such Letter of Credit fail to conform was issued or such Advance created in respect of the sourcing or other corporate requirements or needs of the U.S. Borrower, the Sub Borrower or any way with such Letter Subsidiary of Creditthe U.S. Borrower or Sub Borrower, or otherwise.
Appears in 1 contract
