Reimbursement and Participations. (i) The Borrower hereby unconditionally agrees to pay to the Issuing Lender immediately on demand all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender may charge any account the Borrower may have with it for any and all amounts the Issuing Lender pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender and the Borrower; provided, that at Agent’s election, such amounts may be paid by the making of Revolving Loans without notice to or consent of the Borrower. The Borrower agrees to pay the Issuing Lender interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate. (ii) Each Lender (other than the Issuing Lender) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof. (iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower. (iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding. (v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof. (vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents. (vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement. (viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances: (A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”); (B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents; (C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction; (D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person; (E) any draft, statement or any other document presented under the 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 whatsoever; (F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or (G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (QC Holdings, Inc.), Credit Agreement (QC Holdings, Inc.)
Reimbursement and Participations. (i) The Borrower hereby unconditionally agrees to pay to the Issuing Lender immediately on demand all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender may charge any account the Borrower may have with it for any and all amounts the Issuing Lender pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender and the Borrower; provided, that at Agent’s election, such amounts may be paid by the making of Revolving Loans without notice to or consent of the Borrower. The Borrower agrees to pay the Issuing Lender interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(ii) Each Lender (other than the Issuing Lender) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders Lender or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders Lender or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (QC Holdings, Inc.)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the applicable Issuing Lender Bank immediately on demand at its Applicable Lending Office all amounts required to pay all drafts drawn or purporting to be drawn under the any Letters of Credit and all reasonable expenses incurred by the an Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the applicable Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.4 and Swing Line Loans if permitted by Section 2.17) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Borrower’s obligations to pay an Issuing Lender Bank under this Section 3.2, and such Issuing Bank’s right to receive the same, shall be absolute and unconditional and shall not be affected by any circumstance whatsoever. Each Issuing Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto. The Each Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the such Issuing Lender Bank pays under a Letter of Credit, plus reasonable charges and reasonable expenses as from time to time agreed to by the such Issuing Lender Bank and the Borrower; provided, provided that at Agent’s electionto the extent permitted by Section 2.4(c)(iv) and Section 2.17, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the that an Issuing Lender interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(ii) Each Lender (other than the Issuing Lender) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents. The Borrower agrees to pay an Issuing Bank interest on any Reimbursement Obligations not paid when due hereunder at the Default Rate applicable to Base Rate Loans under the Extended Revolving Credit Facility.
(viib) In accordance with the provisions of Section 2.4(c), each Issuing Bank shall notify the Administrative Agent (and shall also notify the Borrower) of any drawing under any Letter of Credit as promptly as practicable following the receipt by the Issuing Bank of such drawing, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto.
(c) Each Revolving Credit Lender (other than the applicable Issuing Bank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of such Issuing Bank in respect of each Letter of Credit in an amount equal to such Lender’s Revolving Percentage of such liability, and to the extent that the Borrower is obligated to pay such Issuing Bank under Section 3.2(a), each Revolving Credit Lender (other than the Issuing Bank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to such Issuing Bank, its Revolving Percentage of the liability of such Issuing Bank under such Letter of Credit in the manner and with the effect provided in Section 2.4(c)(iv). With respect to drawings under any of the Letters of Credit, each Revolving Credit Lender, upon receipt from the Administrative Agent of notice of a drawing in the manner described in Section 2.4(c)(iv), shall promptly pay to the Administrative Agent for the account of the applicable Issuing Bank, prior to the applicable time set forth in Section 2.4(c)(iv), its Revolving Percentage of such drawing. Simultaneously with the making of each such payment by a Revolving Credit Lender to an Issuing Bank, such Lender shall, automatically and without any further action on the part of such Issuing Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date such Lender made its payment) in the related Reimbursement Obligation of the Borrower. The Reimbursement Obligations of the Borrower shall be immediately due and payable upon notice to the Borrower, whether in Advances made in accordance with Section 2.4(c)(iv) or otherwise. Each Revolving Credit Lender’s obligation to make payment to the Administrative Agent for the account of an Issuing Bank pursuant to Section 2.4(c)(iv) and this Section 3.2(c), and the right of such Issuing Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Revolving Credit Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the applicable Issuing Bank or the Administrative Agent from the Borrower, such Issuing Bank or Administrative Agent shall promptly pay to each Revolving Credit Lender an amount equal to its Revolving Percentage of such payment from the Borrower. If any Revolving Credit Lender is obligated to pay but does not pay amounts to the Administrative Agent for the account of an Issuing Bank in full upon such request as required by this Section 3.2(c), such Lender shall, on demand, pay to the Administrative Agent for the account of such Issuing Bank interest on the unpaid amount for each day during the period commencing on the date of notice given to such Lender pursuant to Section 2.4(c) until such Lender pays such amount to the Administrative Agent for the account of such Issuing Bank in full at the Federal Funds Rate.
(d) As soon as practical following the issuance of a Letter of Credit, the applicable Issuing Bank shall notify the Administrative Agent, and the Administrative Agent shall notify each Revolving Credit Lender, of the date of issuance of such Letter of Credit, the stated amount and the expiry date of such Letter of Credit. Promptly following the end of each calendar quarter, each Issuing Bank shall deliver to the Administrative Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Revolving Credit Lender from time to time, each Issuing Bank shall deliver to the Administrative Agent, and the Administrative Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to the Letter of Credit Outstandings.
(e) Each issuance by an Issuing Bank of a Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that (x) such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Bank consistent with the then current practices and procedures of such Issuing Bank with respect to similar letters of credit, (y) the issuance of such Letter of Credit shall not violate any written policy of the Issuing Bank, and (z) the Borrower shall have executed and delivered such other instruments and agreements relating to such Letters of Credit as the Issuing Bank shall have reasonably requested consistent with such practices and procedures. Except as otherwise provided therein, all Letters of Credit shall be governed by the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
(f) Without limiting the generality of the provisions of Section 11.0511.9, the Borrower hereby agrees to indemnify and hold harmless the each Issuing LenderBank, each other Revolving Credit Lender and the Administrative Agent from and against any and all claims and damages, losses, liabilities, and reasonable costs and expenses which the such Issuing LenderBank, such other Lenders Revolving Credit Lender or the Administrative Agent may incur (or which may be claimed against the such Issuing LenderBank, such other Lenders Revolving Credit Lender or the Administrative Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the an Issuing LenderBank, any other Revolving Credit Lender or the Administrative Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) caused by the willful misconduct or gross negligence of the party to be indemnified, indemnified or (ii) caused by the failure of the an Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decreedecree or failure to pay is permitted under the terms of the Applicable Letter of Credit. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.2(f) shall survive repayment of the Obligations, occurrence of the Revolving Credit Termination Date, the Facility Termination Date and expiration or termination of this Agreement.
(viiig) Without limiting the Borrower’s obligations as set forth in provisions of Section 2.12(b)(vii3.2(f), the obligation of the Borrower to immediately reimburse the an Issuing Lender Bank for drawings made under Letters of Credit and the each Issuing LenderBank’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for any Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(Ai) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(Bii) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(Ciii) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(Div) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person;
(Ev) any draft, statement or any other document presented under the 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 whatsoeverwhatsoever so long as any such document appeared to comply with the terms of the Letter of Credit;
(Fvi) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Administrative Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this AgreementObligations; or
(Gvii) any other circumstance or happening whatsoeverwhatsoever where the applicable Issuing Bank has acted in good faith, whether or not similar to any of the foregoing; provided, however, that nothing contained herein shall be deemed to release an Issuing Bank or any other Lender of any liability for actual loss arising as a result of its gross negligence or willful misconduct or out of the wrongful dishonor by an Issuing Bank of a proper demand for payment made under and strictly complying with the terms of any Letter of Credit.
Appears in 2 contracts
Samples: Five Year Credit Agreement (Autonation, Inc.), Five Year Credit Agreement (Autonation, Inc.)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the applicable Issuing Lender Bank immediately on demand at its Applicable Lending Office all amounts required to pay all drafts drawn or purporting to be drawn under the any Letters of Credit in accordance with Section 2.4(c)(iv) and all reasonable expenses incurred by the an Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the applicable Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Borrower’s obligations to pay an Issuing Lender Bank under this Section 3.2, and such Issuing Bank’s right to receive the same, shall be absolute and unconditional and shall not be affected by any circumstance whatsoever. Each Issuing Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto. The Each Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the such Issuing Lender Bank pays under a Letter of Credit, plus reasonable charges and reasonable expenses as from time to time agreed to by the such Issuing Lender Bank and the Borrower; provided, provided that at Agent’s electionto the extent permitted by Section 2.4(c)(iv), such amounts may shall be paid by pursuant to Advances under the making of Revolving Loans without notice to or consent of the BorrowerCredit Facility. The Borrower agrees to pay the that an Issuing Lender interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(ii) Each Lender (other than the Issuing Lender) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents. The Borrower agrees to pay an Issuing Bank interest on any Reimbursement Obligations not paid when due hereunder at the Default Rate.
(viib) In accordance with the provisions of Section 2.4(c), each Issuing Bank shall notify the Administrative Agent (and shall also notify the Borrower) of any drawing under any Letter of Credit as promptly as practicable following the receipt by the Issuing Bank of such drawing, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto.
(c) Each Revolving Credit Lender (other than the applicable Issuing Bank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of such Issuing Bank in respect of each Letter of Credit in an amount equal to such Lender’s Revolving Percentage of such liability, and to the extent that the Borrower is obligated to pay such Issuing Bank under Section 3.2(a), each Revolving Credit Lender (other than the Issuing Bank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to such Issuing Bank, its Revolving Percentage of the liability of such Issuing Bank under such Letter of Credit in the manner and with the effect provided in Section 2.4(c)(iv). With respect to drawings under any of the Letters of Credit, each Revolving Credit Lender, upon receipt from the Administrative Agent of notice of a drawing in the manner described in Section 2.4(c)(iv), shall promptly pay to the Administrative Agent for the account of the applicable Issuing Bank, prior to the applicable time set forth in Section 2.4(c)(iv), its Revolving Percentage of such drawing. Simultaneously with the making of each such payment by a Revolving Credit Lender to an Issuing Bank, such Lender shall, automatically and without any further action on the part of such Issuing Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date such Lender made its payment) in the related Reimbursement Obligation of the Borrower. The Reimbursement Obligations of the Borrower shall be immediately due and payable upon notice to the Borrower (subject to Section 2.4(c)(iv)), whether in Advances made in accordance with Section 2.4(c)(iv) or otherwise. Each Revolving Credit Lender’s obligation to make payment to the Administrative Agent for the account of an Issuing Bank pursuant to Section 2.4(c)(iv) and this Section 3.2(c), and the right of such Issuing Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Revolving Credit Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the applicable Issuing Bank or the Administrative Agent from the Borrower, such Issuing Bank or Administrative Agent shall promptly pay to each Revolving Credit Lender an amount equal to its Revolving Percentage of such payment from the Borrower. If any Revolving Credit Lender is obligated to pay but does not pay amounts to the Administrative Agent for the account of an Issuing Bank in full upon such request as required by this Section 3.2(c), such Lender shall, on demand, pay to the Administrative Agent for the account of such Issuing Bank interest on the unpaid amount for each day during the period commencing on the date of notice given to such Lender pursuant to Section 2.4(c) until such Lender pays such amount to the Administrative Agent for the account of such Issuing Bank in full at the Federal Funds Rate.
(d) As soon as practical following the issuance of a Letter of Credit, the applicable Issuing Bank shall notify the Administrative Agent, and the Administrative Agent shall notify each Revolving Credit Lender, of the date of issuance of such Letter of Credit, the stated amount and the expiry date of such Letter of Credit. Promptly following the end of each calendar quarter, each Issuing Bank shall deliver to the Administrative Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Revolving Credit Lender from time to time, each Issuing Bank shall deliver to the Administrative Agent, and the Administrative Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to the Letter of Credit Outstandings.
(e) Each issuance by an Issuing Bank of a Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that (x) such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Bank consistent with the then current practices and procedures of such Issuing Bank with respect to similar letters of credit, (y) the issuance of such Letter of Credit shall not violate any written policy of the Issuing Bank, and (z) the Borrower shall have executed and delivered such other instruments and agreements relating to such Letters of Credit as the Issuing Bank shall have reasonably requested consistent with such practices and procedures. Except as otherwise provided therein, all Letters of Credit shall be governed by the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
(f) Without limiting the generality of the provisions of Section 11.0511.9, the Borrower hereby agrees to indemnify and hold harmless the each Issuing LenderBank, each other Revolving Credit Lender and the Administrative Agent from and against any and all claims and damages, losses, liabilities, and reasonable costs and expenses which the such Issuing LenderBank, such other Lenders Revolving Credit Lender or the Administrative Agent may incur (or which may be claimed against the such Issuing LenderBank, such other Lenders Revolving Credit Lender or the Administrative Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the an Issuing LenderBank, any other Revolving Credit Lender or the Administrative Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) caused by the willful misconduct or gross negligence of the party to be indemnified, indemnified or (ii) caused by the failure of the an Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decreedecree or failure to pay is permitted under the terms of the Applicable Letter of Credit. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.2(f) shall survive repayment of the Obligations, occurrence of the Revolving Credit Termination Date, the Facility Termination Date and expiration or termination of this Agreement.
(viiig) Without limiting the Borrower’s obligations as set forth in provisions of Section 2.12(b)(vii3.2(f), the obligation of the Borrower to immediately reimburse the an Issuing Lender Bank for drawings made under Letters of Credit and the each Issuing LenderBank’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for any Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(Ai) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(Bii) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(Ciii) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(Div) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person;
(Ev) any draft, statement or any other document presented under the 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 whatsoeverwhatsoever so long as any such document appeared to comply with the terms of the Letter of Credit;
(Fvi) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Administrative Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this AgreementObligations; or
(Gvii) any other circumstance or happening whatsoeverwhatsoever where the applicable Issuing Bank has acted in good faith, whether or not similar to any of the foregoing; provided, however, that nothing contained herein shall be deemed to release an Issuing Bank or any other Lender of any liability for actual loss arising as a result of its gross negligence or willful misconduct or out of the wrongful dishonor by an Issuing Bank of a proper demand for payment made under and strictly complying with the terms of any Letter of Credit.
Appears in 2 contracts
Samples: Credit Agreement (Autonation, Inc.), Credit Agreement (Autonation, Inc.)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.2 and Swing Line Loans if permitted by Section 2.5) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.2(c)(iii) and Section 2.5, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.2(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof2.2(c)(iii).
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Uti Corp)
Reimbursement and Participations. (ia) Reimbursement by Borrower. Each Matured LC Obligation shall ------------------------- constitute a Loan by Issuing Bank to Borrower. The Borrower hereby unconditionally agrees to pay to reimburse the Issuing Lender immediately on demand all amounts required to pay all drafts drawn Bank, forthwith, for each payment or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred disbursement made by the Issuing Lender in connection with the Letters of Credit, and in Bank to settle its obligations under any event and without demand to place in possession of the Issuing Lender sufficient funds to pay all debts and liabilities arising draft drawn under any Letter of Credit. The Issuing Lender agrees to give , with interest on the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender may charge any account the Borrower may have with it for any and all amounts the Issuing Lender pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to amount so paid or disbursed by the Issuing Lender Bank from and including the Borrowerdate of payment or disbursement to, but not including, the date the Issuing Bank is reimbursed therefor or the Lenders are deemed to have made a Loan in respect thereof pursuant to the following proviso, as the case may be, at the rate set forth for Base Rate Loans; provided, however, that at Agent’s election, (i) if any such amounts may payment or disbursement shall not be paid by the making of Revolving Loans without notice reimbursed to or consent of the Borrower. The Borrower agrees to pay the Issuing Lender interest on Bank after any Reimbursement Obligations grace period for the payment thereof as provided in Section 8.1 herein and if the Final Maturity Date shall not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
have occurred or (ii) Each Lender (other than the Issuing Lender) if any Matured LC Obligation shall automatically acquire be outstanding on the date of issuance thereofConversion Date, a Participation in then the liability of the Issuing Lender Matured LC Obligation in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liabilitythereof shall automatically, and without notice from or to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on authorization from the part Borrower (and whether or not the amount thereof satisfies the conditions of Section 2.1 and whether or not the conditions of Article IV are satisfied), be deemed to be a Loan, made by each of the Lenders to the Borrower in their respective Percentage Shares of the Issuing Lender Bank's payments or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting disbursements bearing interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender determined pursuant to Section 2.13 and Section 2.12(b)(ii), 2.6 and the right related Matured LC Obligation shall be deemed paid simultaneously with such funding of the Issuing Lender to receive the samedeemed Loan; provided further, shall be absolute and unconditionalhowever, that if any such payment or disbursement shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory reimbursed to the Issuing Lender consistent with the then current practices Bank and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and a Loan shall not be deemed to have been made notwithstanding the preceding proviso for any reason, then the Matured LC Obligation in conflict with any of the express terms herein contained. All Letters of Credit respect thereof shall be issued pursuant to due and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agentpayable, with or without notice to or approval by interest accruing thereon at the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoingLate Payment Rate.
Appears in 1 contract
Reimbursement and Participations. (ia) Reimbursement by Borrower. Each Matured LC Obligation shall ------------------------- constitute a Loan by Issuing Bank to Borrower. The Borrower hereby unconditionally agrees to pay to reimburse the Issuing Lender immediately on demand all amounts required to pay all drafts drawn Bank, forthwith, for each payment or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred disbursement made by the Issuing Lender in connection with the Letters of Credit, and in Bank to settle its obligations under any event and without demand to place in possession of the Issuing Lender sufficient funds to pay all debts and liabilities arising draft drawn under any Letter of Credit. The Issuing Lender agrees to give , with interest on the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender may charge any account the Borrower may have with it for any and all amounts the Issuing Lender pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to amount so paid or disbursed by the Issuing Lender Bank from and including the Borrowerdate of payment or disbursement to, but not including, the date the Issuing Bank is reimbursed therefor or the Lenders are deemed to have made a Loan in respect thereof pursuant to the following proviso, as the case may be, at the rate set forth for Base Rate Loans; provided, however, that at Agent’s election, (i) if any such amounts may payment or disbursement shall not be paid by the making of Revolving Loans without notice reimbursed to or consent of the Borrower. The Borrower agrees to pay the Issuing Lender interest on Bank after any Reimbursement Obligations grace period for the payment thereof as provided in Section 8.1 herein and if the Final Maturity Date shall not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
have occurred or (ii) Each Lender (other than the Issuing Lender) if any Matured LC Obligation shall automatically acquire be outstanding on the date of issuance thereofFinal Maturity Date, a Participation in then the liability of the Issuing Lender Matured LC Obligation in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liabilitythereof shall automatically, and without notice from or to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on authorization from the part Borrower (and whether or not the amount thereof satisfies the conditions of Section 2.1 and whether or not the conditions of Article IV are satisfied), be deemed to be a Loan, made by each of the Lenders to the Borrower in their respective Percentage Shares of the Issuing Lender Bank's payments or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting disbursements bearing interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender determined pursuant to Section 2.13 and Section 2.12(b)(ii), 2.6 and the right related Matured LC Obligation shall be deemed paid simultaneously with such funding of the Issuing Lender to receive the samedeemed Loan; provided further, shall be absolute and unconditionalhowever, that if any such payment or disbursement shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory reimbursed to the Issuing Lender consistent with the then current practices Bank and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and a Loan shall not be deemed to have been made notwithstanding the preceding proviso for any reason, then the Matured LC Obligation in conflict with any of the express terms herein contained. All Letters of Credit respect thereof shall be issued pursuant to due and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agentpayable, with or without notice to or approval by interest accruing thereon at the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoingLate Payment Rate.
Appears in 1 contract
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the applicable Issuing Lender Bank immediately on demand at its Applicable Lending Office all amounts required to pay all drafts drawn or purporting to be drawn under the any Letters of Credit and all reasonable expenses incurred by the an Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the applicable Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.1 and Swing Line Loans if permitted by Section 2.14) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Borrower’s obligations to pay an Issuing Lender Bank under this Section 3.2, and such Issuing Bank’s right to receive the same, shall be absolute and unconditional and shall not be affected by any circumstance whatsoever. Each Issuing Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto. The Each Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the such Issuing Lender Bank pays under a Letter of Credit, plus reasonable charges and reasonable expenses as from time to time agreed to by the such Issuing Lender Bank and the Borrower; provided, provided that at Agent’s electionto the extent permitted by Section 2.1(c)(iv) and Section 2.14, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the that an Issuing Lender interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(ii) Each Lender (other than the Issuing Lender) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents. The Borrower agrees to pay an Issuing Bank interest on any Reimbursement Obligations not paid when due hereunder at the Default Rate.
(viib) In accordance with the provisions of Section 2.1(c), each Issuing Bank shall notify the Administrative Agent (and shall also notify the Borrower) of any drawing under any Letter of Credit as promptly as practicable following the receipt by the Issuing Bank of such drawing, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto.
(c) Each Lender (other than the applicable Issuing Bank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of such Issuing Bank in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay such Issuing Bank under Section 3.2(a), each Lender (other than the Issuing Bank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to such Issuing Bank, its Applicable Commitment Percentage of the liability of such Issuing Bank under such Letter of Credit in the manner and with the effect provided in Section 2.1(c)(iv). With respect to drawings under any of the Letters of Credit, each Lender, upon receipt from the Administrative Agent of notice of a drawing in the manner described in Section 2.1(c)(iv), shall promptly pay to the Administrative Agent for the account of the applicable Issuing Bank, prior to the applicable time set forth in Section 2.1(c)(iv), its Applicable Commitment Percentage of such drawing. Simultaneously with the making of each such payment by a Lender to an Issuing Bank, such Lender shall, automatically and without any further action on the part of such Issuing Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. The Reimbursement Obligations of the Borrower shall be immediately due and payable upon notice to the Borrower, whether in Advances made in accordance with Section 2.1(c)(iv) or otherwise. Each Lender’s obligation to make payment to the Administrative Agent for the account of an Issuing Bank pursuant to Section 2.1(c)(iv) and this Section 3.2(c), and the right of such Issuing Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the applicable Issuing Bank or the Administrative Agent from the Borrower, such Issuing Bank or Administrative Agent shall promptly pay to each Lender an amount equal to its Applicable Commitment Percentage of such payment from the Borrower. If any Lender is obligated to pay but does not pay amounts to the Administrative Agent for the account of an Issuing Bank in full upon such request as required by this Section 3.2(c), such Lender shall, on demand, pay to the Administrative Agent for the account of such Issuing Bank interest on the unpaid amount for each day during the period commencing on the date of notice given to such Lender pursuant to Section 2.1(c) until such Lender pays such amount to the Administrative Agent for the account of such Issuing Bank in full at the Federal Funds Rate.
(d) As soon as practical following the issuance of a Letter of Credit, the applicable Issuing Bank shall notify the Administrative Agent, and the Administrative Agent shall notify each Lender, of the date of issuance of such Letter of Credit, the stated amount and the expiry date of such Letter of Credit. Promptly following the end of each calendar quarter, each Issuing Bank shall deliver to the Administrative Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, each Issuing Bank shall deliver to the Administrative Agent, and the Administrative Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Outstanding Letter of Credit.
(e) Each issuance by an Issuing Bank of a Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that (x) such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Bank consistent with the then current practices and procedures of such Issuing Bank with respect to similar letters of credit, (y) the issuance of such Letter of Credit shall not violate any written policy of the Issuing Bank, and (z) the Borrower shall have executed and delivered such other instruments and agreements relating to such Letters of Credit as the Issuing Bank shall have reasonably requested consistent with such practices and procedures. Except as otherwise provided therein, all Letters of Credit shall be governed by the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
(f) Without limiting the generality of the provisions of Section 11.0511.9, the Borrower hereby agrees to indemnify and hold harmless the each Issuing LenderBank, each other Lender and the Administrative Agent from and against any and all claims and damages, losses, liabilities, and reasonable costs and expenses which the such Issuing LenderBank, such other Lenders Lender or the Administrative Agent may incur (or which may be claimed against the such Issuing LenderBank, such other Lenders Lender or the Administrative Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the an Issuing LenderBank, any other Lender or the Administrative Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) caused by the willful misconduct or gross negligence of the party to be indemnified, indemnified or (ii) caused by the failure of the an Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decreedecree or failure to pay is permitted under the terms of the Applicable Letter of Credit. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.2(f) shall survive repayment of the Obligations, occurrence of the Revolving Credit Termination Date, the Facility Termination Date and expiration or termination of this Agreement.
(viiig) Without limiting the Borrower’s obligations as set forth in provisions of Section 2.12(b)(vii3.2(f), the obligation of the Borrower to immediately reimburse the an Issuing Lender Bank for drawings made under Letters of Credit and the each Issuing LenderBank’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for any Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(Ai) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(Bii) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(Ciii) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(Div) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person;
(Ev) any draft, statement or any other document presented under the 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 whatsoeverwhatsoever so long as any such document appeared to comply with the terms of the Letter of Credit;
(Fvi) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Administrative Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this AgreementObligations; or
(Gvii) any other circumstance or happening whatsoeverwhatsoever where the applicable Issuing Bank has acted in good faith, whether or not similar to any of the foregoing; provided, however, that nothing contained herein shall be deemed to release an Issuing Bank or any other Lender of any liability for actual loss arising as a result of its gross negligence or willful misconduct or out of the wrongful dishonor by an Issuing Bank of a proper demand for payment made under and strictly complying with the terms of any Letter of Credit.
Appears in 1 contract
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Five Year Revolving Credit Facility if permitted by Section
2.1) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.4(c), that at Agent’s election, such amounts may shall be paid by pursuant to Advances under the making of Five Year Revolving Loans without notice to or consent of the BorrowerCredit Facility. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.4(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.in
Appears in 1 contract
Samples: Credit Agreement (Health Management Associates Inc)
Reimbursement and Participations. (i) Each Matured LC Obligation shall constitute an Advance by the Agent to the Borrowers. The Borrower hereby unconditionally agrees Borrowers promise to pay to the Issuing Lender immediately on demand all amounts required Agent, or to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender may charge any account the Borrower may have with it for any and all amounts the Issuing Lender pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender and the Borrower; provided, that at Agent’s electionorder, such amounts may be paid by on demand, the making full amount of Revolving Loans without notice to or consent of the Borrower. The Borrower agrees to pay the Issuing Lender each Matured LC Obligation, together with interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder thereon at the Default Raterate applicable to Base Rate Loans, accruing commencing the day after the date on which such reimbursement payment was due.
(ii) Each LC Issuer irrevocably agrees to grant and hereby grants to each Lender, and—to induce LC Issuer to issue Letters of Credit hereunder—each Lender (other than the Issuing Lender) shall automatically acquire irrevocably agrees to accept and purchase and hereby accepts and purchases from LC Issuer, on the date of issuance thereofterms and conditions hereinafter stated and for such Lender’s own account and risk, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount undivided interest equal to such Lender’s Applicable Revolving Commitment Percentage Share of such liability, LC Issuer’s obligations and to the extent that the Borrower is obligated to pay the Issuing Lender rights under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance issued hereunder by LC Issuer and the Issuing Lender amount of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form Matured LC Obligation paid by LC Issuer thereunder. Each Lender unconditionally and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent irrevocably agrees with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 orLC Issuer that, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who Matured LC Obligation is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay paid under any Letter of Credit after for which LC Issuer is not reimbursed in full by the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly Borrowers in accordance with the terms of this Agreement and such Letters of Credit and the related LC Application and Agreement for Letter (including any reimbursement by means of Creditconcurrent Revolving Loans or by the application of LC Collateral), under such Lender shall (in all circumstances whatsoeverand without set-off or counterclaim) pay to LC Issuer on demand, including the following circumstances:
in immediately available funds at LC Issuer’s address for notices hereunder, such Lender’s Percentage Share of such Matured LC Obligation (A) or any lack of validity or enforceability of the Letter of Credit, the obligation supported portion thereof which has not been reimbursed by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related Borrowers). Each Lender’s obligation to pay LC Documents”);
(B) any amendment or waiver of or any consent Issuer pursuant to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreementsubsection is irrevocable and unconditional. If any amount required to be paid by any Lender to LC Issuer pursuant to this subsection is paid by such Lender to LC Issuer within three Business Days after the date such payment is due, LC Issuer shall in addition to such amount be entitled to recover from such Lender, on demand, interest thereon calculated from such due date at the Federal Funds Rate. If any amount required to be paid by any Lender to LC Issuer pursuant to this subsection is not paid by such Lender to LC Issuer within three Business Days after the date such payment is due, LC Issuer shall in addition be entitled to recover from such Lender, on demand, interest thereon calculated from such due date at the Default Rate applicable to Base Rate Loans.
(iii) or other rights which the Borrower may have at Whenever an LC Issuer has in accordance with this section received from any time against Lender payment of such Lender’s Percentage Share of any beneficiary Matured LC Obligation, if such LC Issuer thereafter receives any payment of such Matured LC Obligation or any transferee payment of a Letter interest thereon (whether directly from the Borrowers or by application of Credit LC Collateral or otherwise, and excluding only interest for any period prior to such LC Issuer’s demand that such Lender make such payment of its Percentage Share), such LC Issuer will distribute to such Lender its Percentage Share of the amounts so received by such LC Issuer; provided, however, that if any such payment received by an LC Issuer must thereafter be returned by such LC Issuer, such Lender shall return to such LC Issuer the portion thereof which such LC Issuer has previously distributed to it.
(iv) A written advice setting forth in reasonable detail the amounts owing under this section, submitted by an LC Issuer to the Borrowers or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the Letter of Credit proving Lender from time to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever;
(F) any delay, extension of time, renewalshall be conclusive, compromise or other indulgence or modification granted or agreed absent manifest error, as to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoingamounts thereof.
Appears in 1 contract
Samples: Loan Agreement (Ascent Energy Inc)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable out-of-pocket expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.02 and Swing Line Loans if permitted by Section 2.13) sufficient ------------ ------------ funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.01(c)(iv) and Section 2.13, that at Agent’s election, such amounts may shall be paid pursuant to ------------------- ------------ Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) Each Lender (other than the Issuing Lender) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and In accordance with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.052.01(c), the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and --------------- Bank shall notify the Agent from and against of any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay drawing under any Letter of Credit after promptly following the presentation to it of a request for payment strictly complying with receipt by the terms and conditions Issuing Bank of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreementdrawing.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn under the Letters of Credit or documents purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.1) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.1(c)(iii), that at Agent’s election, such amounts may shall be paid by pursuant to Advances under the making of Revolving Loans without notice to or consent of the BorrowerCredit Facility. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder either directly by the Borrower or through Advances at the Default Rate.
(iib) In accordance with the provisions of Section 2.1(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.its
Appears in 1 contract
Reimbursement and Participations. (ia) The Borrower Each Applicant hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand on the same Business Day, at the Principal Office of the Agent, all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred requested by the Issuing Lender in connection with the Letters of Creditsuch Applicant, and in any event and without demand to place by placing in possession of the Issuing Lender Bank (which shall include US Facility Base Rate Refunding Loans if permitted by Section 2.01(b)(vi)) sufficient funds to pay all debts and liabilities Reimbursement Obligations arising under any such Letter of Credit. The Issuing Lender Bank agrees to give the Borrower Applicants prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower either Applicant may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the BorrowerApplicants; providedprovided that, that at Agent’s electionto the extent permitted by
Section 2.01 (b)(vi), such amounts may drawn under a Letters of Credit (including an Offshore Letter of Credit) shall be paid by the making of Revolving Loans without notice pursuant to or consent of the BorrowerUS Facility Base Rate Refunding Loans. The Borrower Each Applicant agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations as to Letters of Credit issued for such Applicant not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower any Applicant is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.02(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof2.01(b)(vi).
(iiic) Simultaneously with the making of each payment by a Lender to the Issuing Lender Bank pursuant to Section 2.132.01(b)(vi)(B), such Lender shall, automatically and without any further action on the part of the Issuing Lender Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the BorrowerApplicants. Each Lender’s 's obligation to make payment to the Agent for the account of the Issuing Lender Bank pursuant to Section 2.13 2.01(b)(vi) and Section 2.12(b)(ii3.02(c), and the right of the Issuing Lender Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender Bank from the Borrowerany Applicant, the Issuing Lender Bank shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrowersuch Applicant.
(ivd) Promptly following the end of each calendar quartermonth, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quartermonth, including with respect to Offshore Letters of Credit, the date of issuance thereof and the applicable Offshore Currency. The Agent shall deliver to each Lender a report on a monthly basis of the aggregate Letter of Credit Outstandings at the end of each calendar month determined, with respect to Offshore Letters of Credit, based on the applicable Spot Rate of Exchange at such date. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstandingoutstanding.
(ve) The issuance by the Issuing Lender Bank of each Letter of Credit shall, in addition to the conditions precedent set forth in Article VVI, be subject to the conditions that (x) such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender Bank consistent with the then current practices and procedures of the Issuing Lender Bank with respect to similar letters of credit, (y) the issuance of such Letter of Credit shall not violate any policy of the Issuing Bank, and (z) the Borrower Borrowers shall have executed and delivered such other instruments and agreements relating to such Letter Letters of Credit as the Issuing Lender Bank shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters Unless otherwise expressly agreed by the Issuing Bank and the Borrowers, when a Letter of Credit shall be is issued pursuant (including any such agreement applicable to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Existing Letter of Credit), the International Chamber rules of Commerce the "International Standby Practices commonly referred 1998" published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to as “ISP98,” or any subsequent amendment or revision each Letter of either thereofCredit.
(vif) The Each Borrower agrees that the Issuing Lender Bank may, in its sole reasonable discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver, attorney in attorney-in-fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Technitrol Inc)
Reimbursement and Participations. (ia) The Borrower hereby Borrowers hereby, jointly and severally, unconditionally agrees agree to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.2 and Swing Line Loans if permitted by Section 2.5) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower Borrowers prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower Borrowers may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the BorrowerBorrowers; providedprovided that to the extent permitted by Section 2.2(c)(iii) and Section 2.5, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrowers shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees Borrowers agree to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.2(c), the Issuing Bank shall notify the Administrative Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is Borrowers are obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof2.2(c)(iii).
(iiid) Simultaneously with the making of each payment by a Lender to the Issuing Lender Bank pursuant to Section 2.132.2(c)(iii)(B), such Lender shall, automatically and without any further action on the part of the Issuing Lender Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the BorrowerBorrowers. Each Lender’s 's obligation to make payment to the Administrative Agent for the account of the Issuing Lender Bank pursuant to Section 2.13 2.2(c)(iii) and Section 2.12(b)(ii3.2(c), and the right of the Issuing Lender Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender Bank from the BorrowerBorrowers, the Issuing Lender Bank shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the BorrowerBorrowers.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Pepsiamericas Inc)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the applicable Issuing Lender Bank immediately on demand at its Applicable Lending Office all amounts required to pay all drafts drawn or purporting to be drawn under the any Letters of Credit and all reasonable expenses incurred by the an Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the applicable Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.4 and Swing Line Loans if permitted by Section 2.17) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Borrower’s obligations to pay an Issuing Lender Bank under this Section 3.2, and such Issuing Bank’s right to receive the same, shall be absolute and unconditional and shall not be affected by any circumstance whatsoever. Each Issuing Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto. The Each Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the such Issuing Lender Bank pays under a Letter of Credit, plus reasonable charges and reasonable expenses as from time to time agreed to by the such Issuing Lender Bank and the Borrower; provided, provided that at Agent’s electionto the extent permitted by Section 2.4(c)(iv) and Section 2.17, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the that an Issuing Lender interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(ii) Each Lender (other than the Issuing Lender) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents. The Borrower agrees to pay an Issuing Bank interest on any Reimbursement Obligations not paid when due hereunder at the Default Rate.
(viib) In accordance with the provisions of Section 2.4(c), each Issuing Bank shall notify the Administrative Agent (and shall also notify the Borrower) of any drawing under any Letter of Credit as promptly as practicable following the receipt by the Issuing Bank of such drawing, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto.
(c) Each Revolving Credit Lender (other than the applicable Issuing Bank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of such Issuing Bank in respect of each Letter of Credit in an amount equal to such Lender’s Revolving Percentage of such liability, and to the extent that the Borrower is obligated to pay such Issuing Bank under Section 3.2(a), each Revolving Credit Lender (other than the Issuing Bank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to such Issuing Bank, its Revolving Percentage of the liability of such Issuing Bank under such Letter of Credit in the manner and with the effect provided in Section 2.4(c)(iv). With respect to drawings under any of the Letters of Credit, each Revolving Credit Lender, upon receipt from the Administrative Agent of notice of a drawing in the manner described in Section 2.4(c)(iv), shall promptly pay to the Administrative Agent for the account of the applicable Issuing Bank, prior to the applicable time set forth in Section 2.4(c)(iv), its Revolving Percentage of such drawing. Simultaneously with the making of each such payment by a Revolving Credit Lender to an Issuing Bank, such Lender shall, automatically and without any further action on the part of such Issuing Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date such Lender made its payment) in the related Reimbursement Obligation of the Borrower. The Reimbursement Obligations of the Borrower shall be immediately due and payable upon notice to the Borrower, whether in Advances made in accordance with Section 2.4(c)(iv) or otherwise. Each Revolving Credit Lender’s obligation to make payment to the Administrative Agent for the account of an Issuing Bank pursuant to Section 2.4(c)(iv) and this Section 3.2(c), and the right of such Issuing Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Revolving Credit Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the applicable Issuing Bank or the Administrative Agent from the Borrower, such Issuing Bank or Administrative Agent shall promptly pay to each Revolving Credit Lender an amount equal to its Revolving Percentage of such payment from the Borrower. If any Revolving Credit Lender is obligated to pay but does not pay amounts to the Administrative Agent for the account of an Issuing Bank in full upon such request as required by this Section 3.2(c), such Lender shall, on demand, pay to the Administrative Agent for the account of such Issuing Bank interest on the unpaid amount for each day during the period commencing on the date of notice given to such Lender pursuant to Section 2.4(c) until such Lender pays such amount to the Administrative Agent for the account of such Issuing Bank in full at the Federal Funds Rate.
(d) As soon as practical following the issuance of a Letter of Credit, the applicable Issuing Bank shall notify the Administrative Agent, and the Administrative Agent shall notify each Revolving Credit Lender, of the date of issuance of such Letter of Credit, the stated amount and the expiry date of such Letter of Credit. Promptly following the end of each calendar quarter, each Issuing Bank shall deliver to the Administrative Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Revolving Credit Lender from time to time, each Issuing Bank shall deliver to the Administrative Agent, and the Administrative Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Outstanding Letter of Credit.
(e) Each issuance by an Issuing Bank of a Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that (x) such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Bank consistent with the then current practices and procedures of such Issuing Bank with respect to similar letters of credit, (y) the issuance of such Letter of Credit shall not violate any written policy of the Issuing Bank, and (z) the Borrower shall have executed and delivered such other instruments and agreements relating to such Letters of Credit as the Issuing Bank shall have reasonably requested consistent with such practices and procedures. Except as otherwise provided therein, all Letters of Credit shall be governed by the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
(f) Without limiting the generality of the provisions of Section 11.0511.9, the Borrower hereby agrees to indemnify and hold harmless the each Issuing LenderBank, each other Revolving Credit Lender and the Administrative Agent from and against any and all claims and damages, losses, liabilities, and reasonable costs and expenses which the such Issuing LenderBank, such other Lenders Revolving Credit Lender or the Administrative Agent may incur (or which may be claimed against the such Issuing LenderBank, such other Lenders Revolving Credit Lender or the Administrative Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the an Issuing LenderBank, any other Revolving Credit Lender or the Administrative Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) caused by the willful misconduct or gross negligence of the party to be indemnified, indemnified or (ii) caused by the failure of the an Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decreedecree or failure to pay is permitted under the terms of the Applicable Letter of Credit. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.2(f) shall survive repayment of the Obligations, occurrence of the Revolving Credit Termination Date, the Facility Termination Date and expiration or termination of this Agreement.
(viiig) Without limiting the Borrower’s obligations as set forth in provisions of Section 2.12(b)(vii3.2(f), the obligation of the Borrower to immediately reimburse the an Issuing Lender Bank for drawings made under Letters of Credit and the each Issuing LenderBank’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for any Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(Ai) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(Bii) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(Ciii) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(Div) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person;
(Ev) any draft, statement or any other document presented under the 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 whatsoeverwhatsoever so long as any such document appeared to comply with the terms of the Letter of Credit;
(Fvi) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Administrative Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this AgreementObligations; or
(Gvii) any other circumstance or happening whatsoeverwhatsoever where the applicable Issuing Bank has acted in good faith, whether or not similar to any of the foregoing; provided, however, that nothing contained herein shall be deemed to release an Issuing Bank or any other Lender of any liability for actual loss arising as a result of its gross negligence or willful misconduct or out of the wrongful dishonor by an Issuing Bank of a proper demand for payment made under and strictly complying with the terms of any Letter of Credit.
Appears in 1 contract
Reimbursement and Participations. (ia) The Borrower Each Applicant hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand on the same Business Day, at the Principal Office of the Agent, all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred requested by the Issuing Lender in connection with the Letters of Creditsuch Applicant, and in any event and without demand to place by placing in possession of the Issuing Lender Bank (which shall include US Facility Base Rate Refunding Loans if permitted by Section 2.01(b)(vi) hereof) sufficient funds to pay all debts and liabilities Reimbursement Obligations arising under any such Letter of Credit. The Issuing Lender Bank agrees to give the Borrower Applicants prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower either Applicant may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the BorrowerApplicants; providedprovided that, that at Agent’s electionto the extent permitted by Section 2.01(b)(vi) hereof, such amounts may drawn under a Letters of Credit (including an Offshore Letter of Credit) shall be paid by the making of Revolving Loans without notice pursuant to or consent of the BorrowerUS Facility Base Rate Refunding Loans. The Borrower Each Applicant agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations as to Letters of Credit issued for such Applicant not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) Each Revolving Credit Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Revolving Credit Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower any Applicant is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i)3.02(a) hereof, each Revolving Credit Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 2.01(b)(vi) hereof.
(iiic) Simultaneously with the making of each payment by a Revolving Credit Lender to the Issuing Lender Bank pursuant to Section 2.132.01(b)(vi)(B) hereof, such Revolving Credit Lender shall, automatically and without any further action on the part of the Issuing Lender Bank or such Revolving Credit Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Revolving Credit Lender made its payment) in the related Reimbursement Obligation of the BorrowerApplicants. Each Revolving Credit Lender’s 's obligation to make payment to the Agent for the account of the Issuing Lender Bank pursuant to Section 2.13 2.01(b)(vi) and Section 2.12(b)(ii)3.02(c) of this Agreement, and the right of the Issuing Lender Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Revolving Credit Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender Bank from the Borrowerany Applicant, the Issuing Lender Bank shall promptly pay to each Revolving Credit Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrowersuch Applicant.
(ivd) Promptly following the end of each calendar quartermonth, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quartermonth, including with respect to Offshore Letters of Credit, the date of issuance thereof and the applicable Offshore Currency. The Agent shall deliver to each Revolving Credit Lender a report on a monthly basis of the aggregate Letter of Credit Outstandings at the end of each calendar month determined, with respect to Offshore Letters of Credit, based on the applicable Spot Rate of Exchange at such date. Upon the request of any Revolving Credit Lender from time to time, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent, and the Agent shall deliver to such Revolving Credit Lender, any other information reasonably requested by such Revolving Credit Lender with respect to each Letter of Credit Outstandingoutstanding.
(ve) The issuance by the Issuing Lender Bank of each Letter of Credit shall, in addition to the conditions precedent set forth in Article VVI hereof, be subject to the conditions that (x) such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender Bank consistent with the then current practices and procedures of the Issuing Lender Bank with respect to similar letters of credit, (y) the issuance of such Letter of Credit shall not violate any policy of the Issuing Bank, and (z) the Borrower Borrowers shall have executed and delivered such other instruments and agreements relating to such Letter Letters of Credit as the Issuing Lender Bank shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters Unless otherwise expressly agreed by the Issuing Bank and the Borrowers, when a Letter of Credit is issued, the rules of the "International Standby Practices 1998" published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall be issued pursuant apply to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected each Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vif) The Each Borrower agrees that the Issuing Lender Bank may, in its sole reasonable discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver, attorney in attorney-in-fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(viig) Without limiting the generality of the provisions of Section 11.0512.10 hereof, the Borrower each Applicant hereby agrees to indemnify and hold harmless the Issuing LenderBank, each other Revolving Credit Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing LenderBank, such other Lenders Revolving Credit Lender or the Agent may incur (or which may be claimed against the Issuing LenderBank, such other Lenders Revolving Credit Lender or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of CreditCredit requested by such Applicant; provided that the Borrower no Applicant shall not be required to indemnify the Issuing LenderBank, any other Revolving Credit Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) caused by the willful misconduct or gross negligence of the party to be indemnified, indemnified or (ii) caused by the failure of the Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decreedecree or (iii) caused by the Issuing Bank's gross negligence or willful misconduct in payment under any Letter of Credit after the presentation to it of a request for payment not complying with the terms and conditions of such Letter of Credit; and provided further, that no Offshore Facility Borrower that is an Applicant shall be required to indemnify the Issuing Bank, any other Revolving Credit Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses arising from Letters of Credit issued on behalf of any other Borrower. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.02(g) shall survive repayment of the Obligations, occurrence of the Facility Termination Date Date, the Facility Repayment Date, and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Technitrol Inc)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the applicable Issuing Lender Bank immediately on demand at its Applicable Lending Office all amounts required to pay all drafts drawn or purporting to be drawn under the any Letters of Credit in accordance with Section 2.4(c)(iv) and all reasonable expenses incurred by the an Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the applicable Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Borrower’s obligations to pay an Issuing Lender Bank under this Section 3.2, and such Issuing Bank’s right to receive the same, shall be absolute and unconditional and shall not be affected by any circumstance whatsoever. Each Issuing Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto. The Each Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the such Issuing Lender Bank pays under a Letter of Credit, plus reasonable charges and reasonable expenses as from time to time agreed to by the such Issuing Lender Bank and the Borrower; provided, provided that at Agent’s electionto the extent permitted by Section 2.4(c)(iv), such amounts may shall be paid by pursuant to Advances under the making of Revolving Loans without notice to or consent of the BorrowerCredit Facility. The Borrower agrees to pay the that an Issuing Lender interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(ii) Each Lender (other than the Issuing Lender) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents. The Borrower agrees to pay an Issuing Bank interest on any Reimbursement Obligations not paid when due hereunder at the Default Rate.
(viib) Without limiting the generality of In accordance with the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender2.4(c), each other Lender Issuing Bank shall notify the Administrative Agent (and shall also notify the Agent from and against Borrower) of any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay drawing under any Letter of Credit after as promptly as practicable following the presentation receipt by the Issuing Bank of such drawing, but failure to it provide such notice shall not affect the parties’ Obligations with respect thereto.
(c) Each Revolving Credit Lender (other than the applicable Issuing Bank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of such Issuing Bank in respect of each Letter of Credit in an amount equal to such Lender’s Revolving Percentage of such liability, and to the extent that the Borrower is obligated to pay such Issuing Bank under Section 3.2(a), each Revolving Credit Lender (other than the Issuing Bank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to such Issuing Bank, its Revolving Percentage of the liability of such Issuing Bank under such Letter of Credit in the manner and with the effect provided in Section 2.4(c)(iv). With respect to drawings under any of the Letters of Credit, each Revolving Credit Lender, upon receipt from the Administrative Agent of notice of a request drawing in the manner described in Section 2.4(c)(iv), shall promptly pay to the Administrative Agent for payment strictly complying the account of the applicable Issuing Bank, prior to the applicable time set forth in Section 2.4(c)(iv), its Revolving Percentage of such drawing. Simultaneously with the terms making of each such payment by a Revolving Credit Lender to an Issuing Bank, such Lender shall, automatically and conditions without any further action on the part of such Issuing Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date such Lender made its payment) in the related Reimbursement Obligation of the Borrower. The Reimbursement Obligations of the Borrower shall be immediately due and payable upon notice to the Borrower (subject to Section 2.4(c)(iv)), whether in Advances made in accordance with Section 2.4(c)(iv) or otherwise. Each Revolving Credit Lender’s obligation to make payment to the Administrative Agent for the account of an Issuing Bank pursuant to Section 2.4(c)(iv) and this Section 3.2(c), and the right of such Issuing Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Revolving Credit Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the applicable Issuing Bank or the Administrative Agent from the Borrower, such Issuing Bank or Administrative Agent shall promptly pay to each Revolving Credit Lender an amount equal to its Revolving Percentage of such payment from the Borrower. If any Revolving Credit Lender is obligated to pay but does not pay amounts to the Administrative Agent for the account of an Issuing Bank in full upon such request as required by this Section 3.2(c), such Lender shall, on demand, pay to the Administrative Agent for the account of such Issuing Bank interest on the unpaid amount for each day during the period commencing on the date of notice given to such Lender pursuant to Section 2.4(c) until such Lender pays such amount to the Administrative Agent for the account of such Issuing Bank in full at the Federal Funds Rate.
(d) As soon as practical following the issuance of a Letter of Credit, the applicable Issuing Bank shall notify the Administrative Agent, and the Administrative Agent shall notify each Revolving Credit Lender, of the date of issuance of such Letter of Credit, unless the stated amount and the expiry date of such payment is prohibited by any lawLetter of Credit. Promptly following the end of each calendar quarter, regulation, court order or decree. The indemnification and hold harmless provisions each Issuing Bank shall deliver to the Administrative Agent a notice describing the aggregate undrawn amount of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under all Letters of Credit at the end of such quarter. Upon the request of any Revolving Credit Lender from time to time, each Issuing Bank shall deliver to the Administrative Agent, and the Issuing Administrative Agent shall deliver to such Lender’s right , any other information reasonably requested by such Lender with respect to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);Outstandings.
(Be) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee Each issuance by an Issuing Bank of a Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that (or any persons or entities for whom any x) such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Bank consistent with the then current practices and procedures of such Issuing Bank with respect to similar letters of credit, (or any persons or entities for whom y) the issuance of such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the Letter of Credit proving shall not violate any written policy of the Issuing Bank, and (z) the Borrower shall have executed and delivered such other instruments and agreements relating to such Letters of Credit as the Issuing Bank shall have reasonably requested consistent with such practices and procedures. Except as otherwise provided therein, all Letters of Credit shall be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to governed by the Agent, with or without notice to or approval rules of the “International Standby Practices 1998” published by the Borrower Institute of International Banking Law & Practice (or such later version thereof as may be in respect effect at the time of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoingissuance).
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by SECTION 2.1 and Swing Line Loans if permitted by SECTION 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by SECTION 2.1(c)(iii) and SECTION 2.4, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of SECTION 2.1(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, or on the Closing Date in the case of the Existing Letters of Credit, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(iSECTION 3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereofSECTION 2.1(c)(iii).
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Annual Report
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the applicable Issuing Lender Bank immediately on demand at its Applicable Lending Office all amounts required to pay all drafts drawn or purporting to be drawn under the any Letters of Credit and all reasonable expenses incurred by the an Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the applicable Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.4 and Swing Line Loans if permitted by Section 2.17) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Borrower’s obligations to pay an Issuing Lender Bank under this Section 3.2, and such Issuing Bank’s right to receive the same, shall be absolute and unconditional and shall not be affected by any circumstance whatsoever. Each Issuing Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto. The Each Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the such Issuing Lender Bank pays under a Letter of Credit, plus reasonable charges and reasonable expenses as from time to time agreed to by the such Issuing Lender Bank and the Borrower; provided, provided that at Agent’s electionto the extent permitted by Section 2.4(c)(iv) and Section 2.17, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the that an Issuing Lender interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(ii) Each Lender (other than the Issuing Lender) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents. The Borrower agrees to pay an Issuing Bank interest on any Reimbursement Obligations not paid when due hereunder at the Default Rate.
(viib) In accordance with the provisions of Section 2.4(c), each Issuing Bank shall notify the Administrative Agent (and shall also notify the Borrower) of any drawing under any Letter of Credit as promptly as practicable following the receipt by the Issuing Bank of such drawing, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto.
(c) Each Revolving Credit Lender (other than the applicable Issuing Bank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of such Issuing Bank in respect of each Letter of Credit in an amount equal to such Lender’s Revolving Percentage of such liability, and to the extent that the Borrower is obligated to pay such Issuing Bank under Section 3.2(a), each Revolving Credit Lender (other than the Issuing Bank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to such Issuing Bank, its Revolving Percentage of the liability of such Issuing Bank under such Letter of Credit in the manner and with the effect provided in Section 2.4(c)(iv). With respect to drawings under any of the Letters of Credit, each Revolving Credit Lender, upon receipt from the Administrative Agent of notice of a drawing in the manner described in Section 2.4(c)(iv), shall promptly pay to the Administrative Agent for the account of the applicable Issuing Bank, prior to the applicable time set forth in Section 2.4(c)(iv), its Revolving Percentage of such drawing. Simultaneously with the making of each such payment by a Revolving Credit Lender to an Issuing Bank, such Lender shall, automatically and without any further action on the part of such Issuing Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date such Lender made its payment) in the related Reimbursement Obligation of the Borrower. The Reimbursement Obligations of the Borrower shall be immediately due and payable upon notice to the Borrower, whether in Advances made in accordance with Section 2.4(c)(iv) or otherwise. Each Revolving Credit Lender’s obligation to make payment to the Administrative Agent for the account of an Issuing Bank pursuant to Section 2.4(c)(iv) and this Section 3.2(c), and the right of such Issuing Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Revolving Credit Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the applicable Issuing Bank or the Administrative Agent from the Borrower, such Issuing Bank or Administrative Agent shall promptly pay to each Revolving Credit Lender an amount equal to its Revolving Percentage of such payment from the Borrower. If any Revolving Credit Lender is obligated to pay but does not pay amounts to the Administrative Agent for the account of an Issuing Bank in full upon such request as required by this Section 3.2(c), such Lender shall, on demand, pay to the Administrative Agent for the account of such Issuing Bank interest on the unpaid amount for each day during the period commencing on the date of notice given to such Lender pursuant to Section 2.4(c) until such Lender pays such amount to the Administrative Agent for the account of such Issuing Bank in full at the Federal Funds Rate.
(d) As soon as practical following the issuance of a Letter of Credit, the applicable Issuing Bank shall notify the Administrative Agent, and the Administrative Agent shall notify each Revolving Credit Lender, of the date of issuance of such Letter of Credit, the stated amount and the expiry date of such Letter of Credit. Promptly following the end of each calendar quarter, each Issuing Bank shall deliver to the Administrative Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Revolving Credit Lender from time to time, each Issuing Bank shall deliver to the Administrative Agent, and the Administrative Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to the Letter of Credit Outstandings.
(e) Each issuance by an Issuing Bank of a Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that (x) such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Bank consistent with the then current practices and procedures of such Issuing Bank with respect to similar letters of credit, (y) the issuance of such Letter of Credit shall not violate any written policy of the Issuing Bank, and (z) the Borrower shall have executed and delivered such other instruments and agreements relating to such Letters of Credit as the Issuing Bank shall have reasonably requested consistent with such practices and procedures. Except as otherwise provided therein, all Letters of Credit shall be governed by the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
(f) Without limiting the generality of the provisions of Section 11.0511.9, the Borrower hereby agrees to indemnify and hold harmless the each Issuing LenderBank, each other Revolving Credit Lender and the Administrative Agent from and against any and all claims and damages, losses, liabilities, and reasonable costs and expenses which the such Issuing LenderBank, such other Lenders Revolving Credit Lender or the Administrative Agent may incur (or which may be claimed against the such Issuing LenderBank, such other Lenders Revolving Credit Lender or the Administrative Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the an Issuing LenderBank, any other Revolving Credit Lender or the Administrative Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) caused by the willful misconduct or gross negligence of the party to be indemnified, indemnified or (ii) caused by the failure of the an Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decreedecree or failure to pay is permitted under the terms of the Applicable Letter of Credit. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.2(f) shall survive repayment of the Obligations, occurrence of the Revolving Credit Termination Date, the Facility Termination Date and expiration or termination of this Agreement.
(viiig) Without limiting the Borrower’s obligations as set forth in provisions of Section 2.12(b)(vii3.2(f), the obligation of the Borrower to immediately reimburse the an Issuing Lender Bank for drawings made under Letters of Credit and the each Issuing LenderBank’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for any Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(Ai) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(Bii) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(Ciii) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(Div) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person;
(Ev) any draft, statement or any other document presented under the 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 whatsoeverwhatsoever so long as any such document appeared to comply with the terms of the Letter of Credit;
(Fvi) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Administrative Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this AgreementObligations; or
(Gvii) any other circumstance or happening whatsoeverwhatsoever where the applicable Issuing Bank has acted in good faith, whether or not similar to any of the foregoing; provided, however, that nothing contained herein shall be deemed to release an Issuing Bank or any other Lender of any liability for actual loss arising as a result of its gross negligence or willful misconduct or out of the wrongful dishonor by an Issuing Bank of a proper demand for payment made under and strictly complying with the terms of any Letter of Credit.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.1 and Swing Line Loans if permitted by Section 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit; provided that to the extent permitted by Section 2.1, such amounts shall be paid pursuant to Advances under the Revolving Credit Facility. The Issuing Lender Bank agrees to give the Borrower prompt written notice of any request for a draw under a Letter of Credit. The Borrower's obligations to pay the Issuing Lender Bank under this Section 3.2, and the Issuing Bank's right to receive the same, shall be absolute and unconditional and shall not be affected by any circumstance whatsoever, including without limitation the unavailability of any Advance under the Revolving Credit Facility. In the event an Advance is not available under the Revolving Credit Facility, the Issuing Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; provided, that at Agent’s election, such amounts may be paid by the making of Revolving Loans without notice to or consent of the Borrower. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder on demand at the Default RateRate from the date such amount was due and payable to the date such amount is paid in full.
(iib) In accordance with the provisions of Section 2.1(c), the Issuing Bank shall notify the Agent (and shall also notify the Borrower) of any drawing under any Letter of Credit as promptly as practicable following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Lender (other than the Issuing LenderBank) thereby thereby, shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof2.1(c)(iii).
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the applicable Issuing Lender Bank immediately on demand at its Applicable Lending Office all amounts required to pay all drafts drawn or purporting to be drawn under the any Letters of Credit in accordance with Section 2.4(c)(iv) and all reasonable expenses incurred by the an Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the applicable Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Borrower’s obligations to pay an Issuing Lender Bank under this Section 3.2, and such Issuing Bank’s right to receive the same, shall be absolute and unconditional and shall not be affected by any circumstance whatsoever. Each Issuing Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto. The Each Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the such Issuing Lender Bank pays under a Letter of Credit, plus reasonable charges and reasonable expenses as from time to time agreed to by the such Issuing Lender Bank and the Borrower; provided, provided that at Agent’s electionto the extent permitted by Section 2.4(c)(iv), such amounts may shall be paid by pursuant to Advances under the making of Revolving Loans without notice to or consent of the BorrowerCredit Facility. The Borrower agrees to pay the that an Issuing Lender interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(ii) Each Lender (other than the Issuing Lender) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents. The Borrower agrees to pay an Issuing Bank interest on any Reimbursement Obligations not paid when due hereunder at the Default Rate.
(viib) In accordance with the provisions of Section 2.4(c), each Issuing Bank shall notify the Administrative Agent (and shall also notify the Borrower) of any drawing under any Letter of Credit as promptly as practicable following the receipt by the Issuing Bank of such drawing, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto.
(c) Each Revolving Credit Lender (other than the applicable Issuing Bank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of such Issuing Bank in respect of each Letter of Credit in an amount equal to such Lendxx’x Xevolving Percentage of such liability, and to the extent that the Borrower is obligated to pay such Issuing Bank under Section 3.2(a), each Revolving Credit Lender (other than the Issuing Bank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to such Issuing Bank, its Revolving Percentage of the liability of such Issuing Bank under such Letter of Credit in the manner and with the effect provided in Section 2.4(c)(iv). With respect to drawings under any of the Letters of Credit, each Revolving Credit Lender, upon receipt from the Administrative Agent of notice of a drawing in the manner described in Section 2.4(c)(iv), shall promptly pay to the Administrative Agent for the account of the applicable Issuing Bank, prior to the applicable time set forth in Section 2.4(c)(iv), its Revolving Percentage of such drawing. Simultaneously with the making of each such payment by a Revolving Credit Lender to an Issuing Bank, such Lender shall, automatically and without any further action on the part of such Issuing Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date such Lender made its payment) in the related Reimbursement Obligation of the Borrower. The Reimbursement Obligations of the Borrower shall be immediately due and payable upon notice to the Borrower (subject to Section 2.4(c)(iv)), whether in Advances made in accordance with Section 2.4(c)(iv) or otherwise. Each Revolving Credit Lender’s obligation to make payment to the Administrative Agent for the account of an Issuing Bank pursuant to Section 2.4(c)(iv) and this Section 3.2(c), and the right of such Issuing Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Revolving Credit Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the applicable Issuing Bank or the Administrative Agent from the Borrower, such Issuing Bank or Administrative Agent shall promptly pay to each Revolving Credit Lender an amount equal to its Revolving Percentage of such payment from the Borrower. If any Revolving Credit Lender is obligated to pay but does not pay amounts to the Administrative Agent for the account of an Issuing Bank in full upon such request as required by this Section 3.2(c), such Lender shall, on demand, pay to the Administrative Agent for the account of such Issuing Bank interest on the unpaid amount for each day during the period commencing on the date of notice given to such Lender pursuant to Section 2.4(c) until such Lender pays such amount to the Administrative Agent for the account of such Issuing Bank in full at the Federal Funds Effective Rate.
(d) As soon as practical following the issuance of a Letter of Credit, the applicable Issuing Bank shall notify the Administrative Agent, and the Administrative Agent shall notify each Revolving Credit Lender, of the date of issuance of such Letter of Credit, the stated amount and the expiry date of such Letter of Credit. Promptly following the end of each calendar quarter, each Issuing Bank shall deliver to the Administrative Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Revolving Credit Lender from time to time, each Issuing Bank shall deliver to the Administrative Agent, and the Administrative Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to the Letter of Credit Outstandings.
(e) Each issuance by an Issuing Bank of a Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that (x) such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Bank consistent with the then current practices and procedures of such Issuing Bank with respect to similar letters of credit, (y) the issuance of such Letter of Credit shall not violate any written policy of the Issuing Bank, and (z) the Borrower shall have executed and delivered such other instruments and agreements relating to such Letters of Credit as the Issuing Bank shall have reasonably requested consistent with such practices and procedures. Except as otherwise provided therein, all Letters of Credit shall be governed by the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
(f) Without limiting the generality of the provisions of Section 11.0511.9, the Borrower hereby agrees to indemnify and hold harmless the each Issuing LenderBank, each other Revolving Credit Lender and the Administrative Agent from and against any and all claims and damages, losses, liabilities, and reasonable costs and expenses which the such Issuing LenderBank, such other Lenders Revolving Credit Lender or the Administrative Agent may incur (or which may be claimed against the such Issuing LenderBank, such other Lenders Revolving Credit Lender or the Administrative Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the an Issuing LenderBank, any other Revolving Credit Lender or the Administrative Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) caused by the willful misconduct or gross negligence of the party to be indemnified, indemnified or (ii) caused by the failure of the an Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decreedecree or failure to pay is permitted under the terms of the Applicable Letter of Credit. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.2(f) shall survive repayment of the Obligations, occurrence of the Revolving Credit Termination Date, the Facility Termination Date and expiration or termination of this Agreement.
(viiig) Without limiting the Borrower’s obligations as set forth in provisions of Section 2.12(b)(vii3.2(f), the obligation of the Borrower to immediately reimburse the an Issuing Lender Bank for drawings made under Letters of Credit and the each Issuing LenderBank’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for any Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(Ai) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(Bii) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(Ciii) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(Div) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person;
(Ev) any draft, statement or any other document presented under the 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 whatsoeverwhatsoever so long as any such document appeared to comply with the terms of the Letter of Credit;
(Fvi) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Administrative Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this AgreementObligations; or
(Gvii) any other circumstance or happening whatsoeverwhatsoever where the applicable Issuing Bank has acted in good faith, whether or not similar to any of the foregoing; provided, however, that nothing contained herein shall be deemed to release an Issuing Bank or any other Lender of any liability for actual loss arising as a result of its gross negligence or willful misconduct or out of the wrongful dishonor by an Issuing Bank of a proper demand for payment made under and strictly complying with the terms of any Letter of Credit.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Reimbursement and Participations. (ia) The Borrower SEI hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.3 and Swing Line Loans if permitted by Section 2.6) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower SEI prompt notice of any request for a draw under a Letter of Credit. The If SEI does not make prompt payment upon demand, the Issuing Lender Bank may charge any account the Borrower SEI may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and SEI; provided that to the Borrower; provided, that at Agent’s electionextent permitted by Section 2.3(c)(iii) and Section 2.6, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if SEI shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower SEI agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.3(c), the Issuing Bank shall notify the Administrative Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Revolving Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Revolving Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower SEI is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Revolving Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof2.3(c)(iii).
(iiid) Simultaneously with the making of each payment by a Revolving Lender to the Issuing Lender Bank pursuant to Section 2.132.3(c)(iii)(B), such Revolving Lender shall, automatically and without any further action on the part of the Issuing Lender Bank or such Revolving Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the BorrowerSEI. Each Revolving Lender’s 's obligation to make payment to the Administrative Agent for the account of the Issuing Lender Bank pursuant to Section 2.13 2.3(c)(iii) and Section 2.12(b)(ii3.2(c), and the right of the Issuing Lender Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Revolving Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender Bank from the BorrowerSEI, the Issuing Lender Bank shall promptly pay to each Revolving Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the BorrowerSEI.
(ive) Promptly following the end of each calendar quartermonth, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent Administrative Agent, for further distribution to the Revolving Lenders, a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quartermonth. Upon the request of any Revolving Lender from time to time, the Issuing Lender (if different than the Agent) Bank shall deliver to the Administrative Agent, and the Administrative Agent shall deliver to such Revolving Lender, any other information reasonably requested by such Revolving Lender with respect to each Letter of Credit Outstandingoutstanding.
(vf) The issuance by the Issuing Lender Bank of each Letter of Credit shall, in addition to the conditions precedent set forth in Article VVII, be subject to the conditions that (x) such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender Bank consistent with the then current practices and procedures of the Issuing Lender Bank with respect to similar letters of credit, (y) the issuance of such Letter of Credit shall not violate any policy of the Issuing Bank, and the Borrower (z) SEI shall have executed and delivered such other instruments and agreements relating to such Letter Letters of Credit as the Issuing Lender Bank shall have reasonably requested consistent with such practices and procedures procedures. Unless otherwise expressly agreed by the Issuing Bank and shall not be in conflict with any of the express terms herein contained. All Letters SEI when a Letter of Credit shall be is issued pursuant (including any such agreement applicable to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected any Existing Letter of Credit), the International Chamber rules of Commerce the "International Standby Practices commonly referred 1998" published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to as “ISP98,” or any subsequent amendment or revision each Letter of either thereofCredit.
(vig) The Borrower SEI agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(viih) Without limiting the generality of the provisions of Section 11.0513.9, the Borrower SEI hereby agrees to indemnify and hold harmless the Issuing LenderBank, each other Lender Revolving Lender, the Administrative Agent and the Collateral Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and reasonable expenses which the Issuing LenderBank, such other Lenders Revolving Lender, the Administrative Agent or the Collateral Agent may incur (or which may be claimed against the Issuing LenderBank, such other Lenders Lender, the Administrative Agent or the Collateral Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower SEI shall not be required to indemnify the Issuing LenderBank, any other Lender Lender, the Administrative Agent or the Collateral Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) caused by the willful misconduct or gross negligence of the party to be indemnified, indemnified or (ii) caused by the failure of the Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.2(h) shall survive repayment of the Obligations, occurrence of the Revolving Credit Termination Date, the Facility Termination Date and expiration or termination of this Agreement.
(viiii) Without limiting the Borrower’s obligations as set forth in provisions of Section 2.12(b)(vii3.2(h), the obligation of the Borrower SEI to immediately reimburse the Issuing Lender Bank for drawings made under Letters of Credit and the Issuing Lender’s Bank's right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower SEI shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(Ai) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “"Related LC Documents”");
(Bii) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(Ciii) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower SEI may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Administrative Agent, the Collateral Agent, the Revolving Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(Div) any breach of contract or other dispute between the Borrower SEI and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Administrative Agent, the Collateral Agent, the Revolving Lenders or any other Person;
(Ev) any draft, statement or any other document presented under the 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 whatsoeverwhatsoever so long as any such document appeared to comply with the terms of the Letter of Credit;
(Fvi) the existence, character, quality, quantity, condition, value, or delivery (including the time, place, manner or order thereof) of property described or purportedly described in documents presented in connection with any Letter of Credit or the existence, nature or extent of any insurance relating thereto;
(vii) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Administrative Agent, with or without notice to or approval by the Borrower SEI in respect of any of Borrower’s Obligations under this AgreementSEI's Obligations; or
(Gviii) any other circumstance or happening whatsoeverwhatsoever where the Issuing Bank has acted in good faith, whether or not similar to any of the foregoing.
Appears in 1 contract
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by SECTION 2.1 and Swing Line Loans if permitted by SECTION 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by SECTION 2.1(c)(iii) and SECTION 2.4, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of SECTION 2.1(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(iSECTION 3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereofSECTION 2.1(c)(iii).
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Reimbursement and Participations. (i) The Each Matured L/C Obligation shall constitute a loan by L/C Issuer to Borrower. Borrower hereby unconditionally agrees promises to pay to L/C Issuer, or to L/C Issuer's order, on demand, the Issuing Lender immediately on demand all amounts required full amount of each Matured L/C Obligation, together with interest thereon (A) at the Alternative Base Rate to pay all drafts drawn or purporting to be drawn under and including the Letters of Credit second Business Day after the Matured L/C Obligation is incurred and all reasonable expenses incurred by the Issuing Lender in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender may charge any account the Borrower may have with it for any and all amounts the Issuing Lender pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender and the Borrower; provided, that at Agent’s election, such amounts may be paid by the making of Revolving Loans without notice to or consent of the Borrower. The Borrower agrees to pay the Issuing Lender interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i(B) when due hereunder at the Default RateRate on each day thereafter.
(ii) Each Lender (other than If the Issuing Lender) shall automatically acquire on the date beneficiary of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each any Letter of Credit makes a draft or other demand for payment thereunder then the Borrower Representative may, during the interval between the making thereof and the honoring thereof by L/C Issuer, request the Lenders to make Loans to Borrower in an the amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liabilitydraft or demand, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby which Loans shall absolutely, unconditionally and irrevocably assume, be made concurrently with L/C Issuer's payment of such draft or demand and shall be unconditionally obligated immediately applied by L/C Issuer to pay to repay the Issuing Lender, its Applicable Revolving Commitment Percentage amount of the liability resulting Matured L/C Obligation. Such a request by the Borrower Representative shall be made in compliance with all of the Issuing Lender under provisions hereof; provided, however, that for the purposes of the first sentence of Section 2(a)(i), the amount of such Letter Loans shall be considered, but the amount of Credit in the manner and with the effect provided in Section 2.13 hereofMatured L/C Obligation to be concurrently paid by such Loans shall not be considered.
(iii) Simultaneously with the making L/C Issuer irrevocably agrees to grant and hereby grants to each Lender, and, to induce L/C Issuer to issue Letters of Credit hereunder, each payment by a Lender irrevocably agrees to the Issuing Lender pursuant to Section 2.13accept and purchase and hereby accepts and purchases from L/C Issuer, such Lender shall, automatically and without any further action on the part of the Issuing Lender or terms and conditions hereinafter stated and for such Lender, acquire a Participation in 's own account and risk an amount undivided interest equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation Lender's Percentage Share of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 L/C Issuer's obligations and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to rights under each Letter of Credit Outstanding.
(v) The issuance by issued hereunder and the Issuing Lender amount of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form Matured L/C Obligation paid by L/C Issuer thereunder. Each Lender unconditionally and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent irrevocably agrees with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 orL/C Issuer that, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who Matured L/C Obligation is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay paid under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment which L/C Issuer is prohibited not reimbursed in full by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit Request (including any reimbursement by means of concurrent Loans or by the application of L/C Collateral), such Lender shall (in all circumstances and without set-off or counterclaim) pay to L/C Issuer on demand, in immediately available funds at L/C Issuer's address for notices hereunder, such Lender's Percentage Share of such Matured L/C Obligation (or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”portion thereof that has not been reimbursed by Borrower);
(B) any amendment or waiver of or any consent . Each Lender's obligation to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with pay L/C Issuer pursuant to the terms of this Agreementsubsection is irrevocable and unconditional. If any amount required to be paid by any Lender to an L/C Issuer pursuant to this subsection is paid by such Lender to L/C Issuer within three Business Days after the date such payment is due, L/C Issuer shall in addition to such amount be entitled to recover from such Lender, on demand, interest thereon calculated from such due date at the Federal Funds Rate. If any amount required to be paid by any Lender to an L/C Issuer pursuant to this subsection is not paid by such Lender to L/C Issuer within three Business Days after the date such payment is due, L/C Issuer shall in addition to such amount be entitled to recover from such Lender, on demand, interest thereon calculated from such due date at the Alternative Base Rate.
(iv) or other rights which the Borrower may have at Whenever an L/C Issuer has in accordance with subsection (iii) above received from any time against Lender payment of such Lender's Percentage Share of any beneficiary Matured L/C Obligation, if L/C Issuer thereafter receives any payment of such Matured L/C Obligation or any transferee payment of a Letter interest thereon (whether directly from Borrower or by application of Credit L/C Collateral or otherwise, and excluding only interest for any period prior to L/C Issuer's demand that such Lender make such payment of its Percentage Share), L/C Issuer will distribute to such Lender its Percentage Share of the amounts so received by L/C Issuer; provided, however, that if any such payment received by L/C Issuer must thereafter be returned by L/C Issuer, such Lender shall return to L/C Issuer the portion thereof that L/C Issuer has previously distributed to it.
(v) A written advice setting forth in reasonable detail the amounts owing under this Section, submitted by the L/C Issuer to Borrower or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the Letter of Credit proving Lender from time to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever;
(F) any delay, extension of time, renewalshall be conclusive, compromise or other indulgence or modification granted or agreed absent manifest error, as to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoingamounts thereof.
Appears in 1 contract
Samples: Reimbursement, Loan and Security Agreement (Eott Energy Partners Lp)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn under the Letters of Credit or documents purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.1) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.1(c)(iii), that at Agent’s election, such amounts may shall be paid by pursuant to Advances under the making of Revolving Loans without notice to or consent of the BorrowerCredit Facility. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder either directly by the Borrower or through Advances at the Default Rate.
(iib) In accordance with the provisions of Section 2.1(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof2.1(c)(iii).
(iiid) Simultaneously with the making of each payment by a Lender to the Issuing Lender Bank pursuant to Section 2.132.1(c)(iii)(B), such Lender shall, automatically and without any further action on the part of the Issuing Lender Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s 's obligation to make payment to the Agent for the account of the Issuing Lender Bank pursuant to Section 2.13 2.1(c)(iii) and Section 2.12(b)(ii3.2(c), and the right of the Issuing Lender Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender Bank from the Borrower, the Issuing Lender Bank shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(ive) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstandingoutstanding.
(vf) The issuance Unless otherwise expressly agreed by the Issuing Lender of each Bank and the Borrower when a Letter of Credit shall, in addition is issued (including any such agreement applicable to the conditions precedent set forth in Article V, be subject to the conditions that such an Existing Letter of Credit Credit), (i) the rules of the "International Standby Practices 1998" published by the Institute of International Banking Law & Practice (or such later version thereof as may be in such form and contain such terms as effect at the time of issuance) shall be reasonably satisfactory apply to the Issuing Lender consistent with the then current practices and procedures each standby Letter of the Issuing Lender with respect to similar letters of creditCredit, and (ii) the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter rules of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices Practice for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect as most recently published by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred (the "ICC") at the time of issuance shall apply to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any each commercial Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Reimbursement and Participations. (i) The Borrower hereby unconditionally agrees to pay to the Issuing Lender immediately on demand all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred Each Matured LC Obligation shall constitute an Advance by the Issuing Lender in connection with the Letters of Credit, and in any event and without demand Agent to place in possession of the Issuing Lender sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender may charge any account the Borrower may have with it for any and all amounts the Issuing Lender pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender and the Borrower; provided, that at Agent’s election, such amounts may be paid by the making of Revolving Loans without notice to or consent of the Borrower. The Borrower agrees promises to pay to the Issuing Lender Agent, or to the Agent's order, on demand, the full amount of each Matured LC Obligation, together with interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder thereon at the Default Raterate applicable to Base Rate Loans, accruing commencing the day after the date on which such reimbursement payment was due.
(ii) Each LC Issuer irrevocably agrees to grant and hereby grants to each Lender, and -- to induce LC Issuer to issue Letters of Credit hereunder -- each Lender (other than the Issuing Lender) shall automatically acquire irrevocably agrees to accept and purchase and hereby accepts and purchases from LC Issuer, on the date terms and conditions hereinafter stated and for such Lender's own account and risk, an undivided interest equal to such Lender's Percentage Share of issuance thereof, a Participation in the liability of the Issuing Lender in respect of LC Issuer's obligations and rights under each Letter of Credit in an issued hereunder by LC Issuer and the amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing each Matured LC Obligation paid by LC Issuer thereunder. Each Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and agrees with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 orLC Issuer that, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who Matured LC Obligation is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay paid under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment which LC Issuer is prohibited not reimbursed in full by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related LC Application and Agreement for Letter (including any reimbursement by means of Creditconcurrent Loans or by the application of LC Collateral), under such Lender shall (in all circumstances whatsoeverand without set-off or counterclaim) pay to LC Issuer on demand, including the following circumstances:
in immediately available funds at LC Issuer's address for notices hereunder, such Lender's Percentage Share of such Matured LC Obligation (A) or any lack of validity or enforceability of the Letter of Credit, the obligation supported portion thereof which has not been reimbursed by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related Borrower). Each Lender's obligation to pay LC Documents”);
(B) any amendment or waiver of or any consent Issuer pursuant to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreementsubsection is irrevocable and unconditional. If any amount required to be paid by any Lender to LC Issuer pursuant to this subsection is paid by such Lender to LC Issuer within three Business Days after the date such payment is due, LC Issuer shall in addition to such amount be entitled to recover from such Lender, on demand, interest thereon calculated from such due date at the Federal Funds Rate. If any amount required to be paid by any Lender to LC Issuer pursuant to this subsection is not paid by such Lender to LC Issuer within three Business Days after the date such payment is due, LC Issuer shall in addition be entitled to recover from such Lender, on demand, interest thereon calculated from such due date at the Default Rate applicable to Base Rate Loans.
(iii) Whenever an LC Issuer has in accordance with this section received from any Lender payment of such Lender's Percentage Share of any Matured LC Obligation, if such LC Issuer thereafter receives any payment of such Matured LC Obligation or other rights which any payment of interest thereon (whether directly from the Borrower may have at or by application of LC Collateral or otherwise, and excluding only interest for any time against period prior to such LC Issuer's demand that such Lender make such payment of its Percentage Share), such LC Issuer will distribute to such Lender its Percentage Share of the amounts so received by such LC Issuer; provided, however, that if any beneficiary such payment received by an LC Issuer must thereafter be returned by such LC Issuer, such Lender shall return to such LC Issuer the portion thereof which such LC Issuer has previously distributed to it.
(iv) A written advice setting forth in reasonable detail the amounts owing under this section, submitted by an LC Issuer to the Borrower or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the Letter of Credit proving Lender from time to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever;
(F) any delay, extension of time, renewalshall be conclusive, compromise or other indulgence or modification granted or agreed absent manifest error, as to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoingamounts thereof.
Appears in 1 contract
Samples: Loan Agreement (Ascent Energy Inc)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the each Issuing Lender Bank, respectively, immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit issued by such Issuing Bank and all reasonable expenses incurred by the such Issuing Lender Bank in connection with the such Letters of Credit, and in any event and without demand to place in possession of each Issuing Bank (which shall include Advances under the Issuing Lender Revolving Credit Facility if permitted by Section 2.2 and Swing Line Loans if permitted by Section 2.5) sufficient funds to pay all debts and liabilities arising under any Letter of CreditCredit issued thereby. The Each Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Each Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the such Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the such Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.2(c)(iii) and Section 2.5, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Banks interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.2(c), each Issuing Bank shall notify the Administrative Agent of any drawing under any Letter of Credit promptly following the receipt by such Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit issued thereby in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the such Issuing Lender Bank under Section 2.12(b)(iSECTION 3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the such Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereofSECTION 2.2(c)(iii).
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Ameristeel Corp)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the applicable Issuing Lender Bank immediately on demand at its Applicable Lending Office all amounts required to pay all drafts drawn or purporting to be drawn under the any Letters of Credit in accordance with Section 2.4(c)(iv) and all reasonable expenses incurred by the an Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the applicable Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Borrower’s obligations to pay an Issuing Lender Bank under this Section 3.2, and such Issuing Bank’s right to receive the same, shall be absolute and unconditional and shall not be affected by any circumstance whatsoever. Each Issuing Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto. The Each Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the such Issuing Lender Bank pays under a Letter of Credit, plus reasonable charges and reasonable expenses as from time to time agreed to by the such Issuing Lender Bank and the Borrower; provided, provided that at Agent’s electionto the extent permitted by Section 2.4(c)(iv), such amounts may shall be paid by pursuant to Advances under the making of Revolving Loans without notice to or consent of the BorrowerCredit Facility. The Borrower agrees to pay the that an Issuing Lender interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(ii) Each Lender (other than the Issuing Lender) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents. The Borrower agrees to pay an Issuing Bank interest on any Reimbursement Obligations not paid when due hereunder at the Default Rate.
(viib) In accordance with the provisions of Section 2.4(c), each Issuing Bank shall notify the Administrative Agent (and shall also notify the Borrower) of any drawing under any Letter of Credit as promptly as practicable following the receipt by the Issuing Bank of such drawing, but failure to provide such notice shall not affect the parties’ Obligations with respect thereto.
(c) Each Revolving Credit Lender (other than the applicable Issuing Bank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of such Issuing Bank in respect of each Letter of Credit in an amount equal to such Xxxxxx’s Revolving Percentage of such liability, and to the extent that the Borrower is obligated to pay such Issuing Bank under Section 3.2(a), each Revolving Credit Lender (other than the Issuing Bank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to such Issuing Bank, its Revolving Percentage of the liability of such Issuing Bank under such Letter of Credit in the manner and with the effect provided in Section 2.4(c)(iv). With respect to drawings under any of the Letters of Credit, each Revolving Credit Lender, upon receipt from the Administrative Agent of notice of a drawing in the manner described in Section 2.4(c)(iv), shall promptly pay to the Administrative Agent for the account of the applicable Issuing Bank, prior to the applicable time set forth in Section 2.4(c)(iv), its Revolving Percentage of such drawing. Simultaneously with the making of each such payment by a Revolving Credit Lender to an Issuing Bank, such Lender shall, automatically and without any further action on the part of such Issuing Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date such Lender made its payment) in the related Reimbursement Obligation of the Borrower. The Reimbursement Obligations of the Borrower shall be immediately due and payable upon notice to the Borrower (subject to Section 2.4(c)(iv)), whether in Advances made in accordance with Section 2.4(c)(iv) or otherwise. Each Revolving Credit Lender’s obligation to make payment to the Administrative Agent for the account of an Issuing Bank pursuant to Section 2.4(c)(iv) and this Section 3.2(c), and the right of such Issuing Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Revolving Credit Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the applicable Issuing Bank or the Administrative Agent from the Borrower, such Issuing Bank or Administrative Agent shall promptly pay to each Revolving Credit Lender an amount equal to its Revolving Percentage of such payment from the Borrower. If any Revolving Credit Lender is obligated to pay but does not pay amounts to the Administrative Agent for the account of an Issuing Bank in full upon such request as required by this Section 3.2(c), such Lender shall, on demand, pay to the Administrative Agent for the account of such Issuing Bank interest on the unpaid amount for each day during the period commencing on the date of notice given to such Lender pursuant to Section 2.4(c) until such Lender pays such amount to the Administrative Agent for the account of such Issuing Bank in full at the Federal Funds Effective Rate.
(d) As soon as practical following the issuance of a Letter of Credit, the applicable Issuing Bank shall notify the Administrative Agent, and the Administrative Agent shall notify each Revolving Credit Lender, of the date of issuance of such Letter of Credit, the stated amount and the expiry date of such Letter of Credit. Promptly following the end of each calendar quarter, each Issuing Bank shall deliver to the Administrative Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Revolving Credit Lender from time to time, each Issuing Bank shall deliver to the Administrative Agent, and the Administrative Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to the Letter of Credit Outstandings.
(e) Each issuance by an Issuing Bank of a Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that (x) such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Bank consistent with the then current practices and procedures of such Issuing Bank with respect to similar letters of credit, (y) the issuance of such Letter of Credit shall not violate any written policy of the Issuing Bank, and (z) the Borrower shall have executed and delivered such other instruments and agreements relating to such Letters of Credit as the Issuing Bank shall have reasonably requested consistent with such practices and procedures. Except as otherwise provided therein, all Letters of Credit shall be governed by the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
(f) Without limiting the generality of the provisions of Section 11.0511.9, the Borrower hereby agrees to indemnify and hold harmless the each Issuing LenderBank, each other Revolving Credit Lender and the Administrative Agent from and against any and all claims and damages, losses, liabilities, and reasonable costs and expenses which the such Issuing LenderBank, such other Lenders Revolving Credit Lender or the Administrative Agent may incur (or which may be claimed against the such Issuing LenderBank, such other Lenders Revolving Credit Lender or the Administrative Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the an Issuing LenderBank, any other Revolving Credit Lender or the Administrative Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) caused by the willful misconduct or gross negligence of the party to be indemnified, indemnified or (ii) caused by the failure of the an Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decreedecree or failure to pay is permitted under the terms of the applicable Letter of Credit. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.2(f) shall survive repayment of the Obligations, occurrence of the Revolving Credit Termination Date, the Facility Termination Date and expiration or termination of this Agreement.
(viiig) Without limiting the Borrower’s obligations as set forth in provisions of Section 2.12(b)(vii3.2(f), the obligation of the Borrower to immediately reimburse the an Issuing Lender Bank for drawings made under Letters of Credit and the each Issuing LenderBank’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for any Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(Ai) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(Bii) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(Ciii) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(Div) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Administrative Agent, the Lenders or any other Person;
(Ev) any draft, statement or any other document presented under the 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 whatsoeverwhatsoever so long as any such document appeared to comply with the terms of the Letter of Credit;
(Fvi) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Administrative Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this AgreementObligations; or
(Gvii) any other circumstance or happening whatsoeverwhatsoever where the applicable Issuing Bank has acted in good faith, whether or not similar to any of the foregoing; provided, however, that nothing contained herein shall be deemed to release an Issuing Bank or any other Lender of any liability for actual loss arising as a result of its gross negligence or willful misconduct or out of the wrongful dishonor by an Issuing Bank of a proper demand for payment made under and strictly complying with the terms of any Letter of Credit.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by SECTION 2.1 and Swing Line Loans if permitted by SECTION 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by SECTION 2.1(c)(iii) and SECTION 2.4, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of SECTION 2.1(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the 34 41 Issuing Lender Bank under Section 2.12(b)(iSECTION 3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereofSECTION 2.1(c)(iii).
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Applicable Issuing Lender Bank immediately on demand at the office of the Applicable Issuing Bank, in the case of Letters of Credit issued in Dollars, and at the Funding Bank, in the case of Letters of Credit issued in an Offshore Currency, all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit (which shall include Advances under the Tranche B Revolving Credit Facility if permitted by Section 2.2) and all reasonable expenses incurred by the Applicable Issuing Lender Bank in connection with the Letters of CreditCredit issued by it, and in any event and without demand to place in possession of the Applicable Issuing Lender Bank (which shall include Advances under the Tranche B Revolving Credit Facility if permitted by Section 2.2) sufficient funds to pay all debts and liabilities arising under any Letter of CreditCredit issued by such Issuing Bank. The Each Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Applicable Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Applicable Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Applicable Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.4(d), that at Agent’s election, such amounts may shall be paid by first pursuant to Advances under the making of Tranche B Revolving Loans without notice to or consent of the BorrowerCredit Facility. The Borrower agrees to pay the Applicable Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) Each Lender (other than the Issuing Lender) Bank shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to immediately notify the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or Credit issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of Issuing Bank. In accordance with the provisions of Section 11.052.4(d), the Borrower hereby agrees to indemnify and hold harmless the Applicable Issuing Lender, each other Lender and Bank shall notify the Agent from and against of any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay drawing under any Letter of Credit after promptly following the presentation to it of a request for payment strictly complying with receipt by the terms and conditions Applicable Issuing Bank of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreementdrawing.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Kellwood Co)
Reimbursement and Participations. (i) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; provided, that at Agent’s election, such amounts may be paid by the making of Revolving Loans without notice to or consent of the Borrower. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i2.10(b)(i) when due hereunder at the Default Rate.
(ii) Each Lender Bank (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such LenderBank’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i2.10(b)(i), each Lender Bank (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assumeassumes, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 2.11 hereof.
(iii) Simultaneously with the making of each payment by a Lender Bank to the Issuing Lender Bank pursuant to Section 2.132.11, such Lender Bank shall, automatically and without any further action on the part of the Issuing Lender Bank or such LenderBank, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender Bank made its payment) in the related Reimbursement Obligation of the Borrower. Each LenderBank’s obligation to make payment to the Agent for the account of the Issuing Lender Bank pursuant to Section 2.13 2.11 and Section 2.12(b)(ii2.10(b)(iii), and the right of the Issuing Lender Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders Banks have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender Bank from the Borrower, the Issuing Lender Bank shall promptly pay to each Lender Bank an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender Bank (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender Bank from time to time, the Issuing Lender Bank (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such LenderBank, any other information reasonably requested by such Lender Bank with respect to each Letter of Credit Outstandingoutstanding.
(v) The issuance by the Issuing Lender Bank of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender Bank consistent with the then current practices and procedures of the Issuing Lender Bank with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender Bank shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender Bank shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing LenderBank, each other Lender Bank and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing LenderBank, such other Lenders Bank or the Agent may incur (or which may be claimed against the Issuing LenderBank, such other Lenders Bank or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing LenderBank, any other Lender Bank or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii2.10(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii2.10(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender Bank for drawings made under Letters of Credit and the Issuing LenderBank’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders Banks or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower Borrowers and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders Banks or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (QC Holdings, Inc.)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.1) sufficient funds to ----------- pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.1(c)(iii) and Section 2.4, that at Agent’s election, such ------------------- ----------- amounts may shall be paid by pursuant to Advances under the making of Revolving Loans without notice to or consent of the BorrowerCredit Facility. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.1(c), the Issuing -------------- Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, thereof a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Lender (other than the Issuing LenderBank) thereby -------------- shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.------- 2.1(c)(iii). -----------
(iiid) Simultaneously with the making of each payment by a Lender to the Issuing Lender Bank pursuant to Section 2.132.1(c)(iii)(B), such Lender shall, ---------------------- automatically and without any further action on the part of the Issuing Lender Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s 's obligation to make payment to the Agent for the account of the Issuing Lender Bank pursuant to Section 2.13 ------- 2.1(c)(iii) and Section 2.12(b)(ii3.2(c), and the right of the Issuing Lender Bank to ----------- -------------- receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender Bank from the Borrower, the Issuing Lender Bank shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(ive) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstandingoutstanding.
(vf) The issuance by the Issuing Lender Bank of each Letter of Credit shall, in addition to the conditions precedent set forth in Article VVII, be ----------- subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender Bank consistent with the then current practices and procedures of the Issuing Lender Bank with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter Letters of Credit as the Issuing Lender Bank shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein containedprocedures. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices Practice for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender Bank shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “"ISP98,” " or any subsequent amendment or revision of either thereof.
(vig) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(viih) Without limiting the generality of the provisions of Section 11.05------- 13.9, the Borrower hereby agrees to indemnify and hold harmless the ---- Issuing LenderBank, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing LenderBank, such other Lenders Lender or the Agent may incur (or which may be claimed against the Issuing LenderBank, such other Lenders Lender or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing LenderBank, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) caused by the willful misconduct or gross negligence of the party to be indemnified, indemnified or (ii) caused by the failure of the Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.2(h) -------------- shall survive repayment of the Obligations, occurrence of the Revolving Credit Termination Date, the Facility Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Cone Mills Corp)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.1 and Swing Line Loans if permitted by Section 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.1(c)(iii) and Section 2.4, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.1(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereofthereof in accordance with the terms hereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof2.1(c)(iii).
(iiid) Simultaneously with the making of each payment by a Lender to the Issuing Lender Bank pursuant to Section 2.132.1(c)(iii)(B), such Lender shall, automatically and without any further action on the part of the Issuing Lender Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender Bank pursuant to Section 2.13 2.1(c)(iii) and Section 2.12(b)(ii3.2(c), and the right of the Issuing Lender Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender Bank from the Borrower, the Issuing Lender Bank shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(ive) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstandingoutstanding.
(vf) The issuance by the Issuing Lender Bank of each Letter of Credit shall, in addition to the conditions precedent set forth in Article VVII, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender Bank consistent with the then current practices and procedures of the Issuing Lender Bank with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter Letters of Credit as the Issuing Lender Bank shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereofISP.
(vig) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(viih) Without limiting the generality of the provisions of Section 11.0513.9, the Borrower hereby agrees to indemnify and hold harmless the Issuing LenderBank, each other Lender Lender, the Agent and the Collateral Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing LenderBank, such other Lenders Lender, the Agent or the Collateral Agent may incur (or which may be claimed against the Issuing LenderBank, such other Lenders Lender, the Agent or the Collateral Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing LenderBank, any other Lender Lender, the Agent or the Collateral Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) of any direct as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the Issuing Bank’s willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.2(h) shall survive repayment of the Obligations, occurrence of the Revolving Credit Termination Date, the Facility Termination Date and expiration or termination of this Agreement.
(viiii) Without limiting the Borrower’s obligations rights as set forth in Section 2.12(b)(vii3.2(h), the obligation of the Borrower to immediately reimburse the Issuing Lender Bank for drawings made under Letters of Credit and the Issuing LenderBank’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for any Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(Ai) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(Bii) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(Ciii) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Collateral Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(Div) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(Ev) any draft, statement or any other document presented under the 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 whatsoeverwhatsoever so long as any such document appeared to comply with the terms of the Letter of Credit;
(Fvi) any payment by the Issuing Bank under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any federal bankruptcy law;
(vii) the existence, character, quality, quantity, condition, value, or delivery (including the time, place, manner or order thereof) of property described or purportedly described in documents presented in connection with any Letter of Credit or the existence, nature or extent of any insurance relating thereto;
(viii) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this AgreementObligations; or
(Gix) any other circumstance or happening whatsoeverwhatsoever where the Issuing Bank has acted in good faith, whether or not similar to any of the foregoing.
Appears in 1 contract
Reimbursement and Participations. (ia) The Each Facility Borrower under the applicable Letter of Credit Facility hereby unconditionally agrees to pay to the applicable Issuing Lender Bank immediately on demand at its Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit issued for the account of such Facility Borrower and all reasonable expenses incurred by the applicable Issuing Lender Bank in connection with the Letters each such Letter of Credit, and in any event and without demand to place in possession of the applicable Issuing Lender Bank (which shall include Advances under the applicable Revolving Credit Facility if permitted by Section 2.2 and Canadian Swing Line Loans with respect to Canadian Letters of Credit if permitted by Section 2.5) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Each of the Issuing Lender Banks agrees to give the applicable Facility Borrower prompt notice of any request for a draw under a any Letter of Credit. The applicable Issuing Lender Bank may charge any account the applicable Facility Borrower may have with it for any and all amounts the such Issuing Lender Bank pays under a any Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the such Issuing Lender Bank and the such Facility Borrower; providedprovided that to the extent permitted by Section 2.2(c)(iii) and Section 2.5, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the applicable Revolving Credit Facility or, if the Borrower shall elect, by Canadian Swing Line Loans in the making case of Revolving Loans without notice to or consent Canadian Letters of the BorrowerCredit. The Each Facility Borrower under either Letter of Credit Facility agrees to pay the applicable Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.2(c), each Issuing Bank shall notify the Relevant Agent of any drawing under any Letter of Credit promptly following the receipt by such Issuing Bank of such drawing.
(c) Each applicable Revolving Credit Facility Lender (other than the applicable Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the applicable Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Revolving Credit Facility Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the applicable Facility Borrower is obligated to pay the applicable Issuing Lender Bank under Section 2.12(b)(i3.2(a), each such Revolving Credit Facility Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the applicable Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the such Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof2.2(c)(iii).
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Consoltex Usa Inc)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.2 and Swing Line Loans if permitted by Section 2.5) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.2(c)(iii) and Section 2.5, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.2(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.Commitment
Appears in 1 contract
Samples: Credit Agreement (Uti Corp)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by SECTION 2.1 and Swing Line Loans if permitted by SECTION 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by SECTION 2.1(c)(iii) and SECTION 2.4, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of SECTION 2.1(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, or on the Closing Date in the case of the Existing Letters of Credit, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(iSECTION 3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.the
Appears in 1 contract
Samples: Credit Agreement (Gencorp Inc)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Three Year Facility if permitted by Section 2.1 and Swing Line Loans if permitted by Section 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.1(d)(iii) and Section 2.4, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Three Year Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.1(d), the Issuing Bank shall notify the Administrative Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof2.1(d)(iii).
(iiid) Simultaneously with the making of each payment by a Lender to the Issuing Lender Bank pursuant to Section 2.132.1(d)(iii)(B), such Lender shall, automatically and without any further action on the part of the Issuing Lender Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s 's obligation to make payment to the Administrative Agent for the account of the Issuing Lender Bank pursuant to Section 2.13 2.1(d)(iii) and Section 2.12(b)(ii3.2(c), and the right of the Issuing Lender Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender Bank from the Borrower, the Issuing Lender Bank shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(ive) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) Bank shall deliver to the Administrative Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) Bank shall deliver to the Administrative Agent, and the Administrative Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstandingoutstanding.
(vf) The issuance by the Issuing Lender Bank of each Letter of Credit shall, in addition to the conditions precedent set forth in Article VVI, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender Bank consistent with the then current practices and procedures of the Issuing Lender Bank with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter Letters of Credit as the Issuing Lender Bank shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices Practice for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender Bank shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “"ISP98,” ", or any subsequent amendment or revision of either thereof.
(vig) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(viih) Without limiting the generality of the provisions of Section 11.0512.9, the Borrower hereby agrees to indemnify and hold harmless the Issuing LenderBank, each other Lender and the Administrative Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing LenderBank, such other Lenders Lender or the Administrative Agent may incur (or which may be claimed against the Issuing LenderBank, such other Lenders Lender or the Administrative Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing LenderBank, any other Lender or the Administrative Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) caused by the willful misconduct or gross negligence of the party to be indemnified, indemnified or (ii) caused by the failure of the Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.2(h) shall survive repayment of the Obligations, occurrence of the Facility Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.1) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.1(c)(iii) and Section 2.4, that at Agent’s election, such amounts may shall be paid by pursuant to Advances under the making of Revolving Loans without notice to or consent of the BorrowerCredit Facility. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.1(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, thereof a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof2.1(c)(iii).
(iiid) Simultaneously with the making of each payment by a Lender to the Issuing Lender Bank pursuant to Section 2.132.1(c)(iii)(B), such Lender shall, automatically and without any further action on the part of the Issuing Lender Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s 's obligation to make payment to the Agent for the account of the Issuing Lender Bank pursuant to Section 2.13 2.1(c)(iii) and Section 2.12(b)(ii3.2(c), and the right of the Issuing Lender Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender Bank from the Borrower, the Issuing Lender Bank shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(ive) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) Bank shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstandingoutstanding.
(vf) The issuance by the Issuing Lender Bank of each Letter of Credit shall, in addition to the conditions precedent set forth in Article VVII, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender Bank consistent with the then current practices and procedures of the Issuing Lender Bank with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter Letters of Credit as the Issuing Lender Bank shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein containedprocedures. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices Practice for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender Bank shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “"ISP98,” " or any subsequent amendment or revision of either thereof.
(vig) The Borrower agrees that the Issuing Lender Bank may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(viih) Without limiting the generality of the provisions of Section 11.0513.9, the Borrower hereby agrees to indemnify and hold harmless the Issuing LenderBank, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing LenderBank, such other Lenders Lender or the Agent may incur (or which may be claimed against the Issuing LenderBank, such other Lenders Lender or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing LenderBank, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: , (i) caused by the willful misconduct or gross negligence of the party to be indemnified, indemnified or (ii) caused by the failure of the Issuing Lender Bank to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii3.2(h) shall survive repayment of the Obligations, occurrence of the Revolving Credit Termination Date, the Facility Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Cone Mills Corp)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the each Issuing Lender Bank, respectively, immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit issued by such Issuing Bank and all reasonable expenses incurred by the such Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by SECTION 2.1 and Swing Line Loans if permitted by SECTION 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Each Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Each Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the such Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the such Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by SECTION 2.1(c)(iii) and SECTION 2.4, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of SECTION 2.1(C), each Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by such Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, or with respect to Existing LCs on the Closing Date, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(iSECTION 3.2(A), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Wackenhut Corp)
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by SECTION 2.1 and Swing Line Loans if permitted by SECTION 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by SECTION 2.1(c)(iii) and SECTION 2.4, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of SECTION 2.1(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(iSECTION 3.2(a), each Lender (other than the Issuing LenderBank) thereby S-41 <PAGE> 49 shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereofSECTION 2.1(c)(iii).
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement
Reimbursement and Participations. (ia) The Borrower for whose account a Letter of Credit has been issued hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office (i) in Dollars with respect to Letters of Credit issued in Dollars, and (ii) in the applicable Alternative Currency, in the case of Letters of Credit issued in Alternative Currencies all amounts required to pay all drafts drawn or purporting to be drawn under the such Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by SECTION 2.1 and Swing Line Loans if permitted by SECTION 2.5) sufficient funds to pay all debts and liabilities drawings arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower Borrowers prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender may charge any account To the Borrower may have with it for any extent permitted by SECTION 2.1(c)(iii) and SECTION 2.5, all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; provided, that at Agent’s election, such amounts may Borrower shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees Borrowers agree to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of SECTION 2.1(c), the Issuing Bank shall notify the Administrative Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to the Dollar Value such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the any Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(iSECTION 3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank in Dollars, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereofSECTION 2.1(c)(iii).
(iiid) Simultaneously with the making of each payment by a Lender to the Issuing Lender Bank pursuant to Section 2.13SECTION 2.1(c)(iii)(B), such Lender shall, automatically and without any further action on the part of the Issuing Lender Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the BorrowerBorrowers. Each Lender’s 's obligation to make payment to the Administrative Agent for the account of the Issuing Lender Bank pursuant to Section 2.13 SECTION 2.1(c)(iii) and Section 2.12(b)(iiSECTION 3.2(c), and the right of the Issuing Lender Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.in
Appears in 1 contract
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.2 and Swing Line Loans if permitted by Section 2.5) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.2(c)(iii) and Section 2.5, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.2(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof2.2(c)(iii).
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Reimbursement and Participations. (ia) The Borrower hereby unconditionally agrees to pay to the Issuing Lender Bank immediately on demand at the Principal Office all amounts required to pay all drafts drawn or purporting to be drawn under the Letters of Credit and all reasonable expenses incurred by the Issuing Lender Bank in connection with the Letters of Credit, and in any event and without demand to place in possession of the Issuing Lender Bank (which shall include Advances under the Revolving Credit Facility if permitted by Section 2.1 and Swing Line Loans if permitted by Section 2.4) sufficient funds to pay all debts and liabilities arising under any Letter of Credit. The Issuing Lender Bank agrees to give the Borrower prompt notice of any request for a draw under a Letter of Credit. The Issuing Lender Bank may charge any account the Borrower may have with it for any and all amounts the Issuing Lender Bank pays under a Letter of Credit, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender Bank and the Borrower; providedprovided that to the extent permitted by Section 2.1(c)(iii) and Section 2.4, that at Agent’s election, such amounts may shall be paid pursuant to Advances under the Revolving Credit Facility or, if the Borrower shall elect, by the making of Revolving Loans without notice to or consent of the BorrowerSwing Line Loans. The Borrower agrees to pay the Issuing Lender Bank interest on any Reimbursement Obligations not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) In accordance with the provisions of Section 2.1(c), the Issuing Bank shall notify the Agent of any drawing under any Letter of Credit promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing LenderBank) shall automatically acquire on the date of issuance thereofthereof in accordance with the terms hereof, a Participation in the liability of the Issuing Lender Bank in respect of each Letter of Credit in an amount equal to such Lender’s 's Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender Bank under Section 2.12(b)(i3.2(a), each Lender (other than the Issuing LenderBank) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing LenderBank, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender Bank under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof2.1(c)(iii).
(iiid) Simultaneously with the making of each payment by a Lender to the Issuing Lender Bank pursuant to Section 2.132.1(c)(iii)(B), such Lender shall, automatically and without any further action on the part of the Issuing Lender Bank or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s 's obligation to make payment to the Agent for the account of the Issuing Lender Bank pursuant to Section 2.13 2.1(c)(iii) and Section 2.12(b)(ii3.2(c), and the right of the Issuing Lender Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender Bank from the Borrower, the Issuing Lender Bank shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Reimbursement and Participations. (ia) The Borrower UK Facility Borrowers hereby unconditionally agrees agree to pay to the Issuing Lender Applicable Bank Guarantee Issuer immediately on demand on the same Business Day at the Principal Office of the UK Facility Agent all amounts required to pay all drafts drawn or purporting be paid by the Applicable Bank Guarantee Issuer to be drawn under the Letters beneficiary of Credit any Bank Guarantee and all reasonable expenses incurred by the Issuing Lender Applicable Bank Guarantee Issuer in connection with the Letters of CreditBank Guarantees, and in any event and without demand to place in possession of the Issuing Lender Applicable Bank Guarantee Issuer (which shall include UK Facility Base Rate Refunding Loans if permitted by SECTION
3.01) sufficient funds to pay all debts and liabilities arising under any Letter of CreditBank Guarantee. The Issuing Lender Each Bank Guarantee Issuer agrees to give the UK Facility Borrower prompt notice of any request for a draw under a Letter of CreditBank Guarantee. The Issuing Lender Each Bank Guarantee Issuer may charge any account the any UK Facility Borrower may have with it for any and all amounts the Issuing Lender such Bank Guarantee Issuer pays under a Letter of CreditBank Guarantee, plus charges and reasonable expenses as from time to time agreed to by the Issuing Lender such Bank Guarantee Issuer and the BorrowerUK Facility Borrowers; providedprovided that to the extent permitted by SECTION 3.01(b)(vii), that at Agent’s election, such amounts may shall be paid by the making of Revolving Loans without notice pursuant to or consent of the BorrowerUK Facility Base Rate Refunding Loans. The Borrower agrees UK Facility Borrowers agree to pay the Issuing Lender Applicable Bank Guarantee Issuer interest on any Reimbursement Obligations arising from Bank Guarantees not paid according to any method referenced in this Section 2.12(b)(i) when due hereunder at the Default Rate.
(iib) Each Lender (other than Bank Guarantee Issuer shall promptly notify the Issuing Lender) shall automatically acquire on the date UK Facility Agent of issuance thereof, a Participation in the liability of the Issuing Lender in respect of each Letter of Credit in an amount equal to any Bank Guarantee issued by such Lender’s Applicable Revolving Commitment Percentage of such liability, and to the extent that the Borrower is obligated to pay the Issuing Lender under Section 2.12(b)(i), each Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, and shall be unconditionally obligated to pay to the Issuing Lender, its Applicable Revolving Commitment Percentage of the liability of the Issuing Lender under such Letter of Credit in the manner and with the effect provided in Section 2.13 hereof.
(iii) Simultaneously with the making of each payment by a Lender to the Issuing Lender pursuant to Section 2.13, such Lender shall, automatically and without any further action on the part of the Issuing Lender or such Lender, acquire a Participation in an amount equal to such payment (excluding the portion thereof constituting interest accrued prior to the date the Lender made its payment) in the related Reimbursement Obligation of the Borrower. Each Lender’s obligation to make payment to the Agent for the account of the Issuing Lender pursuant to Section 2.13 and Section 2.12(b)(ii), and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoeverBank Guarantee Issuer. In the event the Lenders have purchased Participations in any Reimbursement Obligation as set forth above, then at any time payment (in fully collected, immediately available funds) of such Reimbursement Obligation, in whole or in part, is received by the Issuing Lender from the Borrower, the Issuing Lender shall promptly pay to each Lender an amount equal to its Applicable Revolving Commitment Percentage of such payment from the Borrower.
(iv) Promptly following the end of each calendar quarter, the Issuing Lender (if different than the Agent) shall deliver to the Agent a notice describing the aggregate undrawn amount of all Letters of Credit at the end of such quarter. Upon the request of any Lender from time to time, the Issuing Lender (if different than the Agent) shall deliver to the Agent, and the Agent shall deliver to such Lender, any other information reasonably requested by such Lender with respect to each Letter of Credit Outstanding.
(v) The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article V, be subject to the conditions that such Letter of Credit be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender consistent with the then current practices and procedures of the Issuing Lender with respect to similar letters of credit, and the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested consistent with such practices and procedures and shall not be in conflict with any of the express terms herein contained. All Letters of Credit shall be issued pursuant to and subject to the Uniform Customs and Practices for Documentary Credits, 1993 revision, International Chamber of Commerce Publication No. 500 or, if the Issuing Lender shall elect by express reference in an affected Letter of Credit, the International Chamber of Commerce International Standby Practices commonly referred to as “ISP98,” or any subsequent amendment or revision of either thereof.
(vi) The Borrower agrees that the Issuing Lender may, in its sole discretion, accept or pay, as complying with the terms of any Letter of Credit, any drafts or other documents otherwise in order which may be signed or issued by an administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, attorney in fact or other legal representative of a party who is authorized under such Letter of Credit to draw or issue any drafts or other documents.
(vii) Without limiting the generality of the provisions of Section 11.05, the Borrower hereby agrees to indemnify and hold harmless the Issuing Lender, each other Lender and the Agent from and against any and all claims and damages, losses, liabilities, reasonable costs and expenses which the Issuing Lender, such other Lenders or the Agent may incur (or which may be claimed against the Issuing Lender, such other Lenders or the Agent) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender, any other Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent: (i) caused by the willful misconduct or gross negligence of the party to be indemnified, or (ii) caused by the failure of the Issuing Lender to pay under any Letter of Credit after the presentation to it of a request for payment strictly complying with the terms and conditions of such Letter of Credit, unless such payment is prohibited by any law, regulation, court order or decree. The indemnification and hold harmless provisions of this Section 2.12(b)(vii) shall survive repayment of the Obligations, occurrence of the Termination Date and expiration or termination of this Agreement.
(viii) Without limiting the Borrower’s obligations as set forth in Section 2.12(b)(vii), the obligation of the Borrower to immediately reimburse the Issuing Lender for drawings made under Letters of Credit and the Issuing Lender’s right to receive such payment shall be absolute, unconditional and irrevocable, and such obligations of the Borrower shall be performed strictly in accordance with the terms of this Agreement and such Letters of Credit and the related Application and Agreement for Letter of Credit, under all circumstances whatsoever, including the following circumstances:
(A) any lack of validity or enforceability of the Letter of Credit, the obligation supported by the Letter of Credit or any other agreement or instrument relating thereto (collectively, the “Related LC Documents”);
(B) any amendment or waiver of or any consent to or departure from all or any of the Related LC Documents;
(C) the existence of any claim, setoff, defense (other than the defense of payment in accordance with the terms of this Agreement) or other rights which the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person, whether in connection with the Loan Documents, the Related LC Documents or any unrelated transaction;
(D) any breach of contract or other dispute between the Borrower and any beneficiary or any transferee of a Letter of Credit (or any persons or entities for whom such beneficiary or any such transferee may be acting), the Agent, the Lenders or any other Person;
(E) any draft, statement or any other document presented under the 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 whatsoever;
(F) any delay, extension of time, renewal, compromise or other indulgence or modification granted or agreed to by the Agent, with or without notice to or approval by the Borrower in respect of any of Borrower’s Obligations under this Agreement; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.provisions of
Appears in 1 contract
