Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances: (i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents; (ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit); (iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or (v) the occurrence of any Default or Unmatured Default. (b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 3 contracts
Samples: Loan Agreement (Myers Industries Inc), Loan Agreement (Myers Industries Inc), Loan Agreement (Myers Industries Inc)
Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which that the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which that any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a FacilityFacility Letter of Credit. Such Borrower shall reimburse the applicable Issuer for drawings under a Facility Letter of Credit issued by it on behalf of such Borrower promptly after the payment by the Issuer. Any Reimbursement Obligation with respect to any Facility Letter of Credit shall bear interest from the date of the relevant drawings under the pertinent Facility Letter of Credit at (i) in the case of such Obligations denominated in U.S. Dollars, the interest rate for Floating Rate Loans or (ii) in the case of such Obligations denominated in an Available Foreign Currency, at the correlative floating rate of interest customarily applicable to similar extensions of credit to corporate borrowers denominated in such currency in the country of issue of such currency, as reasonably determined by the Administrative Agent. In addition to its other rights, the Issuers shall also have all rights for indemnification and reimbursement as each Lender is entitled under this Agreement.
Appears in 3 contracts
Samples: Credit Agreement and Guaranty (Diebold Inc), Credit Agreement (Diebold Inc), Credit Agreement (Diebold Inc)
Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which that the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which that any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 3 contracts
Samples: Loan Agreement (Diebold Inc), Loan Agreement (Diebold Inc), Loan Agreement (Diebold Inc)
Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a FacilityFacility Letter of Credit. Such Borrower shall reimburse the applicable Issuer for drawings under a Facility Letter of Credit issued by it on behalf of such Borrower promptly after the payment by the Issuer. Any Reimbursement Obligation with respect to any Facility Letter of Credit shall bear interest from the date of the relevant drawings under the pertinent Facility Letter of Credit at (i) in the case of such Obligations denominated in U.S. Dollars, the interest rate for Floating Rate Loans or (ii) in the case of such Obligations denominated in an Agreed Foreign Currency, at the correlative floating rate of interest customarily applicable to similar extensions of credit to corporate borrowers denominated in such currency in the country of issue of such currency, as determined by the Administrative Agent. In addition to its other rights, the Issuers shall also have all rights for indemnification and reimbursement as each Lender is entitled under this Agreement.
Appears in 3 contracts
Samples: Loan Agreement (Myers Industries Inc), Loan Agreement (Myers Industries Inc), Loan Agreement (Myers Industries Inc)
Reimbursement Obligations. (a) Each The Borrower agrees to pay to the Agent for the account of the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company Borrower or any Subsidiary or Affiliate of the Borrower may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any the Borrower or any Subsidiary or Affiliate of the Borrower may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any the Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any the Borrower or any Subsidiary or Affiliate of the Borrower and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the any Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or;
(v) the occurrence of any Default or Unmatured Default;
(vi) with respect to any Facility Letter of Credit for which there is a Subsidiary Co-Applicant, any defense to payment of such Reimbursement Obligations based on the status of the Borrower as a co-applicant for such Facility Letter of Credit, including without limitation any defense to payment which might be available to a guarantor or surety, all of which are hereby explicitly waived by the Borrower, which hereby agrees and acknowledges that its undertaking to pay all Reimbursement Obligations, including without limitation Reimbursement Obligations arising with respect to Facility Letters of Credit for which there is a Subsidiary Co-Applicant, is a primary obligation and not one of surety.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 2 contracts
Samples: Revolving Credit Agreement (JPF Acquisition Corp), Revolving Credit Agreement (Yellow Corp)
Reimbursement Obligations. (a) Each Borrower agrees The failure of any Revolving Lender to pay make any payment to the Issuer account of the amount Revolving LC Issuing Bank in accordance with Section 3.2(c) shall not relieve any other Revolving Lender of all Reimbursement Obligationsits obligation to make payment, interest and other amounts payable to but no Revolving Lender shall be responsible for the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective failure of any claim, set-off, defense or other right which Revolving Lender.
(b) The payment obligations of each Revolving Lender under Section 3.2(c) and of the Borrower, Borrower under this Agreement in respect of any payment under any Revolving LC and any Revolving Loan shall be unconditional and irrevocable and shall be paid strictly in accordance with the Company or any Subsidiary may have at any time against the Issuer or any other Person, terms of this Agreement under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement any P1 Financing Document or any other agreement or instrument relating thereto or to such Revolving LC;
(ii) any amendment or waiver of, or any consent to departure from, all or any of the other Loan P1 Financing Documents;
(iiiii) the existence of any claim, setoffset-off, defense defense, or other right which any the Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit any beneficiary, or any transferee transferee, of any Facility Letter of Credit a Revolving LC (or any Person Persons for whom any such beneficiary or any such transferee may be acting), any Issuer, any Lenderthe Revolving LC Issuing Bank, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or by a Revolving LC, or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit)transaction;
(iiiiv) any draft, certificate statement or any other document presented under the Facility Letter of Credit a Revolving LC proving to be forged, fraudulent, invalid invalid, or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(ivv) payment in good faith by the surrender Revolving LC Issuing Bank under a Revolving LC issued by the Revolving LC Issuing Bank against presentation of a draft or impairment of any security for the performance or observance of any of certificate which does not comply with the terms of any of the Loan Documentssuch Revolving LC; or
(vvi) any other circumstance or happening whatsoever, whether or not similar to any of the occurrence of any Default or Unmatured Defaultforegoing.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 2 contracts
Samples: Cd Credit Agreement (NextDecade Corp.), Credit Agreement (NextDecade Corp.)
Reimbursement Obligations. (a) Each The Borrower agrees to pay to the Issuer Issuer, for the account of the Lenders, as applicable, the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company Borrower or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any the Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any the Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any the Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 2 contracts
Samples: Credit Agreement (Platinum Technology International Inc), Credit Agreement (Platinum Technology Inc)
Reimbursement Obligations. The obligations of the Transferor to reimburse such L/C Issuer upon a drawing under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article II under all circumstances, including without regard to any of the following circumstances:
(ai) Each Borrower agrees to pay to any set-off, counterclaim, recoupment, defense or other right which such L/C Issuer may have against the Issuer Agent, the amount Transferor, any Transferring Affiliate, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person for any reason whatsoever;
(ii) any lack of all Reimbursement Obligations, interest and other amounts payable to the Issuer under validity or in connection with enforceability of any Facility Letter of Credit issued or any set-off, counterclaim, recoupment, defense or other right which the Transferor or a Transferring Affiliate on behalf of such Borrower immediately when duewhich a Letter of Credit has been issued may have against the Agent, irrespective the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person for any reason whatsoever;
(iii) any claim of breach of warranty that might be made by the Transferor, any Transferring Affiliate or any L/C Issuer against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, defense or other right which the BorrowerTransferor, the Company any Transferring Affiliate or any Subsidiary may have at any time against the L/C Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary, any successor beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit or the proceeds thereof (or any Person Persons for whom any such transferee may be acting), any L/C Issuer, any Lenderthe Agent, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions transaction (including any underlying transactions transaction between any Borrower the Transferor or any Subsidiary Affiliates of the Transferor and the beneficiary named in for which any Facility Letter of CreditCredit was procured);
(iiiiv) the lack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or any other document presented under the Facility any Letter of Credit Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent, invalid invalid, defective or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, even if the Agent, any Administrative Agent or the L/C Issuer has been notified thereof;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) payment by an L/C Issuer under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit other than as a result of the gross negligence or willful misconduct of such L/C Issuer;
(vi) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;
(vii) any failure by an L/C Issuer or any of the L/C Issuer’s Affiliates to issue any Letter of Credit in the form requested by the Transferor, unless such L/C Issuer has received written notice from the Transferor of such failure within three Business Days after such L/C Issuer shall have furnished the Transferor a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(viii) any Material Adverse Effect on the Transferor, any Transferring Affiliate or any Affiliates thereof;
(ix) any breach of this Agreement or any Transaction Document by any party thereto;
(x) the occurrence or continuance of an insolvency proceeding with respect to the Transferor, any Default Transferring Affiliate or Unmatured Default.any Affiliate thereof;
(bxi) The Issuer the fact that a Termination Event or a Potential Termination Event shall promptly notify have occurred and be continuing;
(xii) the applicable Borrower fact that this Agreement or the obligations of the Transferor or the Collection Agent hereunder shall have been terminated; and
(xiii) any draw under a Facilityother circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 2 contracts
Samples: Transfer and Administration Agreement (Fresenius Medical Care AG & Co. KGaA), Transfer and Administration Agreement (Fresenius Medical Care AG & Co. KGaA)
Reimbursement Obligations. (a) Each The Borrower agrees to pay to the Issuer of a Letter of Credit (i) on each date that any amount is drawn under each Letter of Credit (or, if any draw is paid by the Issuer after 3:00 p.m. (Chicago time) on such date, on the next succeeding Business Day) a sum (and interest on such sum as provided in clause (ii) below) equal to the amount so drawn plus all other charges and expenses with respect thereto specified in Section 3.9 or in the applicable Reimbursement Agreement and (ii) interest on any and all amounts remaining unpaid under this Section 3.4 until payment in full at the rate per annum, computed for actual days elapsed based on a 365 or 366 day year, as applicable, equal to (A) the Alternate Base Rate for such day for the first two days following the due date of any Reimbursement Obligations, and (B) the Alternate Base Rate for such day plus 2% per annum. The Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or Obligations owing in connection with respect of any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including including, without limitation, any of the following circumstances:
: (iw) any lack of validity or enforceability of this Agreement or any of the other Loan Facility Documents;
; (iix) the existence of any claim, setoffset-off, defense or other right which any the Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or Credit, any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, Lender or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions transaction between any the Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
; (iiiy) the validity, sufficiency or genuineness of any draft, certificate or any other document presented under which the Facility Issuer has determined in good faith complies on its face with the terms of the applicable Letter of Credit proving Credit, even if such document should later prove to be have been forged, fraudulent, invalid or insufficient in any respect or any statement therein being shall have been untrue or inaccurate in any respect;
; or (ivz) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Defaulthereof.
(b) The Notwithstanding any provisions to the contrary in any Reimbursement Agreement, the Borrower agrees to reimburse the Issuer for amounts which the Issuer pays under such Letter of Credit no later than the time specified in this Agreement. If the Borrower does not pay any such Reimbursement Obligations when due at any time prior the Revolving Credit Termination Date, such Reimbursement Obligations, if in Pounds, shall be deemed to have been converted into the equivalent amount of Dollars on the date due based upon the spot rate of exchange between Dollars and Pounds as determined by the Agent on the Reuters WRLD Page as of the time of determination on such date. In the event that such rate does not appear on any Reuters WRLD Page, the exchange rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Agent and the Borrower, or, in the absence of such an agreement, such exchange rate shall instead be the arithmetic average of the spot rates of exchange of the Agent in London at or about such time between Dollars and Pounds for delivery two Business Days later; provided that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Agent may use any reasonable method it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.
(c) If the Issuer makes a payment on account of any Letter of Credit and is not concurrently reimbursed therefor by the Borrower, then as promptly notify as practical during normal banking hours on the applicable date of its receipt of such notice or, if not practicable on such date, not later than noon (Chicago time) on the Business Day immediately succeeding such date of notification, each Lender shall deliver to the Agent for the account of the Issuer, in immediately available funds, the purchase price for such Lender’s interest in such unreimbursed Reimbursement Obligations, which shall be an amount equal to such Lender’s pro-rata share of such payment. Each Lender shall, upon demand by the Issuer, pay the Issuer interest on such Lender’s pro-rata share of such draw from the date of payment by the Issuer on account of such Letter of Credit until the date of delivery of such funds to the Issuer by such Lender at a rate per annum, computed for actual days elapsed based on a 360-day year, equal to the Federal Funds Effective Rate on the amount of the unreimbursed Reimbursement Obligations, if in Dollars, or the equivalent amount of Dollars calculated in the manner provided in paragraph (b), if in Pounds, for such period; provided, that such payments shall be made by the Lenders only in the event and to the extent that the Issuer is not reimbursed in full by the Borrower for interest on the amount of any draw on the Letters of Credit.
(d) At any time after the Issuer has made a payment on account of any Letter of Credit and has received from any other Lender such Lender’s pro-rata share of such payment, such Issuer shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Borrower for such payment, or of any other amount from the Borrower or any other Person in respect of such payment (including, without limitation, any payment of interest or penalty fees and any payment under any collateral account agreement of the Borrower or any Facility Document but excluding any transfer of funds from any other Lender pursuant to Section 3.4(b)), transfer to such other Lender such other Lender’s ratable share of such reimbursement or other amount; provided, that interest shall accrue for the benefit of such Lender from the time such Issuer has made a Facilitypayment on account of any Letter of Credit; provided, further, that in the event that the receipt by the Issuer of such reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under the United States Bankruptcy Code or is otherwise required to be returned, such Lender shall promptly return to the Issuer any portion thereof previously transferred by the Issuer to such Lender, but without interest to the extent that interest is not payable by the Issuer in connection therewith.
(e) All payments in respect of Reimbursement Obligations shall be in Dollars at the Issuer’s selling rate for cable transfers to the place of payment of the Letter of Credit current on the date of payment or of the Issuer’s settlement of its obligation, as the Issuer may require or, at the Issuer’s election, in the currency in which the Issuer was required to pay such Letter of Credit. If, for any cause, on the date of payment or settlement, as the case may be, there is no selling rate or other rate of exchange generally current in Chicago for effecting such transfers, the Borrower will pay the Issuer on demand an amount in Dollars equivalent to the Issuer’s actual cost of settlement on its obligation however or whenever the Issuer shall make such settlement, with interest at the Alternate Base Rate from the date of settlement to the date of payment.
Appears in 2 contracts
Samples: Credit Agreement (Navigators Group Inc), Credit Agreement (Navigators Group Inc)
Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or;
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 2 contracts
Samples: Credit Agreement (Meritor Automotive Inc), Credit Agreement (Meritor Automotive Inc)
Reimbursement Obligations. (a) Each 2.4.1. Borrower agrees to pay to the Issuer the amount shall reimburse Agent and, during any period that an Event of Default then exists, each Lender, for all Reimbursement Obligationsreasonable legal fees actually incurred and all accounting, interest appraisal and other amounts payable to the Issuer under reasonable fees and expenses incurred by Agent or any Lender in connection with any Facility Letter (i) the negotiation and preparation of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
Loan Documents, any amendment or modification thereto, any waiver of any Default or Event of Default thereunder, or any restructuring or forbearance with respect thereto; (iii) any lack the administration of validity or enforceability of the Loan Documents and the transactions contemplated thereby, to the extent that such fees and expenses are expressly provided for in this Agreement or any of the other Loan Documents;
; (iiiii) action taken to perfect or maintain the existence perfection or priority of any claim, setoff, defense of Agent's Liens with respect to any of the Collateral; (iv) any inspection of or other right which audits conducted with respect to any Borrower of Borrower's books and records or any Subsidiary may have at of the Collateral; (v) any time effort to verify, protect, preserve, or restore any of the Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any of the Collateral; (vi) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any IssuerAgent, any Lender, any Obligor or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, whether in connection with this Agreementperfection or priority of any of Agent's Liens thereon), any Facility Letter of Creditthe Loan Documents or the validity, the transactions contemplated herein allowance or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance amount of any of the terms Obligations; (vii) the protection or enforcement or any rights or remedies of Agent or any Lender in any Insolvency Proceeding; and (viii) any other action taken by Agent or any Lender to enforce any of the rights or remedies of Agent or such Lender against any Obligor or any Account Debtors to enforce collection of any of the Obligations or payments with respect to any of the Collateral. All amounts chargeable to Borrower under this Section 2.4 shall constitute Obligations that are secured by all of the Collateral and shall be payable on demand to Agent. Borrower shall also reimburse Agent for expenses incurred by Agent in its administration of any of the Collateral to the extent and in the manner provided in Section 7 hereof or in any of the other Loan Documents. The foregoing shall be in addition to, and shall not be construed to limit, any other provision of any of the Loan Documents; or
(v) Documents regarding the occurrence reimbursement by Borrower of costs, expenses or liabilities suffered or incurred by Agent or any Default or Unmatured DefaultLender.
2.4.2. Any indemnity, guaranty or other assurance of payment or performance provided by Agent or (bwith the consent of Agent) The Issuer any Lender to Bank or any other Person with respect to Cash Management Agreements, Interest Rate Contracts or Letters of Credit, together with any payment made or liability incurred by Agent or any Lender in connection therewith, shall promptly notify constitute Obligations that are secured by the applicable Collateral and Borrower of shall repay, on demand, any draw under a Facilityamount so paid or any liability incurred by Agent or any Lender in connection with any such indemnity, guaranty or assurance. Nothing herein shall be construed to impose upon Agent or any Lender any obligation to provide any such indemnity, guaranty or assurance.
Appears in 1 contract
Reimbursement Obligations. (a) Each 2.4.1. Borrower agrees to pay to the Issuer the amount shall reimburse Agent and, during any period that an Event of Default then exists, each Lender, for all Reimbursement Obligationsreasonable legal, interest accounting, appraisal and other amounts payable to the Issuer under fees and expenses incurred by Agent or any Lender in connection with any Facility Letter (i) the negotiation and preparation of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
Loan Documents, any amendment or modification thereto, any waiver of any Default or Event of Default thereunder, or any restructuring or forbearance with respect thereto; (iii) any lack the administration of validity or enforceability of the Loan Documents and the transactions contemplated thereby, to the extent that such fees and expenses are expressly provided for in this Agreement or any of the other Loan Documents;
; (iiiii) action taken to perfect or maintain the existence perfection or priority of any claim, setoff, defense of Agent's Liens with respect to any of the Collateral; (iv) any inspection of or other right which audits conducted with respect to any Borrower of Borrower's books and records or any Subsidiary may have at of the Collateral, provided that for so long as no Default or Event of Default exists, Borrower shall not be required to reimburse Agent for more than 2 audits during any time 12-month period; (v) any effort to verify, protect, preserve, or restore any of the Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any of the Collateral; (vi) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any IssuerAgent, any Lender, any Obligor or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, whether in connection with this Agreementperfection or priority of any of Agent's Liens thereon), any Facility Letter of Creditthe Loan Documents or the validity, the transactions contemplated herein allowance or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance amount of any of the terms Obligations; (vii) the protection or enforcement or any rights or remedies of Agent or any Lender in any Insolvency Proceeding; and (viii) any other action taken by Agent or any Lender to enforce any of the rights or remedies of Agent or such Lender against any Obligor or any Account Debtors to enforce collection of any of the Obligations or payments with respect to any of the Collateral. All amounts chargeable to Borrower under this SECTION 2.4 shall constitute Obligations that are secured by all of the Collateral and shall be payable ON DEMAND to Agent. Borrower shall also reimburse Agent for reasonable expenses incurred by Agent in its administration of any of the Collateral to the extent and in the manner provided in SECTION 7 hereof or in any of the other Loan Documents. The foregoing shall be in addition to, and shall not be construed to limit, any other provision of any of the Loan Documents; orDocuments regarding the reimbursement by Borrower of costs, expenses or liabilities suffered or incurred by Agent or any Lender.
2.4.2. If at any time Agent or any Lender shall agree to indemnify any Person (vincluding Bank) against losses or damages that such Person may suffer or incur in its dealings or transactions with Borrower, or guarantee any liability or obligation of Borrower to such Person, or otherwise provide assurances of Borrower's payment or performance under any agreement with such Person, including indemnities, guaranties or other assurances of payment or performance given by Agent or any Lender with respect to Cash Management Agreements, Interest Rate Contracts or Letters of Credit, then the occurrence Contingent Obligation of Agent or any Lender providing any such indemnity, guaranty or other assurance of payment or performance, together with any payment made or liability incurred by Agent or any Lender in connection therewith, shall constitute Obligations that are secured by the Collateral and Borrower shall repay, ON DEMAND, any amount so paid or any liability incurred by Agent or any Lender in connection with such indemnity, guaranty or assurance, except that payment with respect to any LC Support shall be due on the Reimbursement Date, as provided in SECTION 1.3.1(III) hereof. Nothing herein shall be construed to impose upon Agent or any Lender any obligation to provide any such indemnity, guaranty or assurance, except to the extent provided in SECTION 1.3 hereof. The foregoing agreement of Borrower shall apply even if it is oral and the existence thereof is unknown to Borrower with respect to any indemnity, guaranty or assurance that is an LC Support or is given to (i) Bank with respect to any Cash Management Agreement, (ii) any other financial institution with respect to the banking relationship between Borrower and such other financial institution and (iii) any landlord with respect to any lease of premises used by Borrower at any time, and the agreement contained in this SECTION 2.4.2 shall be in addition to any other provisions of any Default or Unmatured Default.
(b) The Issuer shall promptly notify of the applicable Loan Documents regarding reimbursement by Borrower of costs, expenses or liabilities suffered or incurred by Agent or any draw under a FacilityLender.
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Reimbursement Obligations. (a) Each Borrower agrees The obligation of Borrowers to pay to the Issuer the amount of all Reimbursement Obligationsreimburse Administrative Agent or any Revolving Loan Lender for payments made under, interest and other amounts payable to the Issuer under or in connection with with, any Facility Lender Letter of Credit issued on behalf shall be unconditional and irrevocable and shall be paid under all circumstances strictly in accordance with the terms of such Borrower immediately when duethis Agreement including, irrespective without limitation, the following circumstances:
(a) any lack of validity or enforceability of any Lender Letter of Credit, or any other agreement;
(b) the existence of any claim, set-off, defense or other right which the a Borrower, any of its Affiliates, any Agent or Revolving Loan Lender, on the Company or any Subsidiary one hand, may have at any time have against the Issuer any beneficiary or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Lender Letter of Credit (or any Person Persons for whom any such transferee may be acting), any Issuer, any Lender, Agent or Revolving Loan Lender or any other Person, on the other hand, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions transaction (including any underlying transactions transaction between any a Borrower or any Subsidiary of its Affiliates and the beneficiary named in any Facility of the Lender Letter of Credit);
(iiic) any draft, demand, certificate or any other document presented under the Facility any Lender Letter of Credit proving is alleged to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(ivd) any adverse change in the surrender business, operations, properties, assets, condition (financial or impairment otherwise) or prospects of Loan Parties or any security for the performance of their Subsidiaries;
(e) any breach of this Agreement or observance of any other Loan Document by any party thereto;
(f) any other circumstance or happening whatsoever, whether or not similar to any of the terms foregoing; the fact that a Default or an Event of any of the Loan DocumentsDefault shall have occurred and be continuing; or
(vg) payment under any Lender Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the occurrence terms of such Lender Letter of Credit; provided that, in the case of any Default payment by Administrative Agent or Unmatured Defaulta Revolving Loan Lender under any Lender Letter of Credit, Administrative Agent or such Revolving Loan Lender has not acted with gross negligence or willful misconduct (as determined by a court of competent jurisdiction) in determining that the demand for payment under such Lender Letter of Credit complies on its face with any applicable requirements for a demand for payment under such Lender Letter of Credit.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 1 contract
Samples: Loan Agreement (Recoton Corp)
Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer the amount of Borrowers shall, on a joint and several basis, reimburse Lender for all Reimbursement Obligationsreasonable legal, interest accounting, appraisal and other amounts payable to the Issuer under or fees and expenses incurred by Lender (without duplication) in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective 1. the negotiation and preparation of any claimof the DIP Financing Documents and the Alpine Pre-Petition Note Documents, setany amendment or modification to any of the DIP Financing Documents and the Alpine Pre-offPetition Note Documents, defense any waiver of any Default or other right which the BorrowerEvent of Default thereunder, the Company or any Subsidiary may have at restructuring or forbearance with respect thereto; 1. the administration of the DIP Financing Documents and the Alpine Pre-Petition Note Documents and the transactions contemplated thereby; 1. any action taken to perfect or maintain the perfection or priority of any of Lender's Liens with respect to any of the Collateral; 1. any inspection of or audits conducted with respect to Borrowers' books and records or any of the Collateral (which shall not, in the absence of a continuing Event of Default, occur more frequently than one time in any three-month period); 1. any effort to verify, protect, preserve, or restore any of the Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any of the Collateral; 1. any litigation, contest, dispute, suit, proceeding or action (whether instituted by or against the Issuer Lender, either Borrower or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, under all circumstances, including without limitationperfection or priority of any of Lender's Liens thereon), any of the following circumstances:
DIP Financing Documents, the Alpine Pre-Petition Note Documents or the validity, allowance or amount of any of the Obligations; 1. the protection or enforcement of any rights or remedies of Lender under the DIP Financing Documents or the Alpine Pre-Petition Note Documents; (iviii) monitoring the Chapter 11 Case; and (ix) any lack other action taken by Lender to enforce any of validity the rights or enforceability remedies of Lender against either Borrower or any Account Debtor to enforce collection of any of the Obligations or payments with respect to any of the Collateral. All amounts chargeable to Borrowers, on a joint and several basis, under this Agreement Section 2.2 shall constitute Obligations that are secured by all of the Collateral and shall be payable to Lender on demand. Borrowers shall also reimburse Lender for reasonable out-of-pocket expenses incurred by Lender in its administration of any of the Collateral to the extent and in the manner provided in Article 7 hereof or in any of the other Loan DIP Financing Documents or the Alpine Pre-Petition Note Documents;
(ii) the existence of any claim. The foregoing shall be in addition to, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may and shall not be acting)construed to limit, any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance provision of any of the terms DIP Financing Documents or the Alpine Pre-Petition Note Documents regarding the reimbursement by Borrowers of any costs, expenses or liabilities suffered or incurred by Lender. Notwithstanding the foregoing, Borrowers' obligation to reimburse Lender for fees and expenses incurred by Lender prior to the Closing Date in connection with preparation and negotiation of this Agreement, the Loan Documents; or
(v) other DIP Financing Documents and the occurrence of any Default or Unmatured DefaultAlpine Pre-Petition Note Documents shall not exceed $75,000.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
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Reimbursement Obligations. (a) Each The applicable Borrower's obligation to reimburse LC Disbursements shall be absolute, unconditional and irrevocable, and each Borrower agrees to pay to the applicable Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the such Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the that such Borrower, the Company or any Subsidiary may have at any time against the any Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which that any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or;
(v) the occurrence of any Default or Unmatured Default;
(vi) payment by the Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; or
(vii) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower's obligations hereunder.
(b) The applicable Issuer shall promptly notify the applicable Borrower of any draw under a FacilityFacility Letter of Credit. Such Borrower shall reimburse the applicable Issuer for drawings under a Facility Letter of Credit issued by it on behalf of such Borrower promptly after the payment by the applicable Issuer. Any Reimbursement Obligation with respect to any Facility Letter of Credit shall bear interest from the date of the relevant drawings under the pertinent Facility Letter of Credit at (i) in the case of such Obligations denominated in U.S. Dollars, the interest rate for Floating Rate Loans or (ii) in the case of such Obligations denominated in an Available Foreign Currency, at the correlative floating rate of interest customarily applicable to similar extensions of credit to corporate borrowers denominated in such currency in the country of issue of such currency, as reasonably determined by the Administrative Agent. In addition to its other rights, the Issuers shall also have all rights for indemnification and reimbursement as each Lender is entitled under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Diebold Inc)
Reimbursement Obligations. 2.2.1. Borrowers shall reimburse Agents (aand during any period that an Event of Default exists, each Lender) Each Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstancesfor:
(i) all reasonable legal, accounting, appraisal, consulting and other fees and out-of-pocket expenses incurred by any lack Agent (and during any period that an Event of validity Default exists, any Lender) in connection with (a) the negotiation and preparation of any of the Credit Documents or enforceability any amendment or modification thereto; (b) the administration of this Agreement the Credit Documents and the transactions contemplated thereby, subject to Section 3.2.4 hereof; and (c) any inspection of or audits conducted with respect to any Borrower’s books and records or any of the other Loan Documents;Collateral; and
(ii) all legal, accounting, appraisal, consulting and other fees and out-of-pocket expenses incurred by any Agent (and during any period that an Event of Default exists, any Lender) in connection with: (a) any effort to verify, protect, appraise (subject to Section 3.2.4 hereof), preserve, or restore any of the existence Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any claimof the Collateral; (b) any litigation, setoffcontest, defense dispute, suit, proceeding or other right which action (whether instituted by or against any Agent, any Lender, any Borrower or any Subsidiary may have at other Person) in any time against a beneficiary named in a Facility Letter way arising out of Credit or relating to any transferee of the Collateral (or the validity, perfection or priority of any Facility Letter of Credit (or any Person for whom any such transferee may be actingAdministrative Agent’s Liens thereon), any Issuerof the Credit Documents or the validity, allowance or amount of any Lenderof the Obligations (unless such litigation is between Borrowers and/or Agents and/or Lenders and a court having jurisdiction renders a final, non-appealable judgment against Agents and/or Lenders in which event Borrowers shall not be liable for, as applicable, Agents’ or Lenders’ costs of such litigation); (c) the protection or enforcement or any other Person, whether in connection with this Agreement, rights or remedies of any Facility Letter of Credit, the transactions contemplated herein Agent or any unrelated transactions Lender in any Insolvency Proceeding; (including d) any underlying transactions between other action taken by any Agent or any Lender to enforce any of the rights or remedies of any Agent or such Lender against any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving Account Debtors to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance enforce collection of any of the terms Obligations or payments with respect to any of the Collateral; (e) any waiver of any Default or Event of Default under any of the Credit Documents, or any restructuring or forbearance with respect thereto; and (f) any action taken to perfect or maintain the perfection or priority of any of Administrative Agent’s Liens with respect to any of the Collateral. All amounts chargeable to Borrowers under this Section 3.4 shall constitute Obligations that are secured by all of the Collateral and shall be payable on demand to Administrative Agent. Borrowers also shall reimburse Administrative Agent for expenses incurred by Administrative Agent in its administration of any of the Loan Collateral to the extent and in the manner provided in Section 8 hereof or in any of the other Credit Documents; or
(v) the occurrence . The foregoing shall be in addition to, and shall not be construed to limit, any other provision of any Default of the Credit Documents regarding the reimbursement by Borrowers of costs, expenses or Unmatured Defaultliabilities suffered or incurred by any Agent or any Lender.
2.2.2. If at any time, in connection with the administration of the Credit Documents or the normal day-to-day operations and maintenance of the Loans, Administrative Agent or (bwith the consent of Administrative Agent) The Issuer BAS or any Lender shall promptly notify the applicable Borrower agree to indemnify any Person (including Bank) against losses or damages that such Person may suffer or incur in its dealings or transactions with Borrowers, or shall guarantee or provide assurance of payment or performance of any draw under a Facilityliability or obligation of Borrowers to such Person, including with respect to Banking Relationship Debt, then the Contingent Obligation of any Agent or any Lender providing any such indemnity, guaranty or other assurance of payment or performance, together with any payment made or liability incurred by any Agent or any Lender in connection therewith, shall constitute Obligations that are secured by the Collateral and Borrowers shall repay, on demand, any amount so paid or any liability incurred by any Agent or any Lender in connection with any such indemnity, guaranty or assurance, except that repayment with respect to any LC Support shall be due on the Reimbursement Date as provided in Section 2.3.1(iii). Nothing herein shall be construed to impose upon any Agent or any Lender any obligation to provide any such indemnity, guaranty or assurance except to the extent provided in Section 2.3 hereof. Administrative Agent shall use reasonable efforts to notify Borrower Agent of such indemnity, guaranty or assurance to the extent that such indemnity, guaranty or assurance has not otherwise been expressly requested by Borrowers.
Appears in 1 contract
Samples: Credit and Security Agreement (PNA Group Holding CORP)
Reimbursement Obligations. 3.4.1. Borrowers shall reimburse Agent and (aduring any period that an Event of Default exists) Each Borrower agrees to pay to the Issuer the amount of each Lender for all Reimbursement Obligationslegal, interest accounting, appraisal, consulting and other amounts payable to the Issuer under fees and expenses incurred by Agent or any Lender in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective with: (i) the negotiation and preparation of any claimof the Loan Documents, set-offany amendment or modification thereto, defense any waiver of any Default or other right which the BorrowerEvent of Default thereunder, the Company or any Subsidiary may have at restructuring or forbearance with respect thereto; (ii) the administration of the Loan Documents and the transactions contemplated thereby; (iii) action taken to perfect or maintain the perfection or priority of any time of Agent's Liens with respect to any of the Collateral; (iv) any inspection of or audits conducted by Agent with respect to any Borrower's books and records or any of the Collateral; (v) any effort by Agent to verify, protect, appraise, preserve, or restore any of the Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any of the Collateral; (vi) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or against the Issuer Agent, any Lender, any Obligor or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, under all circumstances, including without limitationperfection or priority of any of Agent's Liens thereon), any of the following circumstances:
Loan Documents or the validity, allowance or amount of any of the Obligations; (ivii) the protection or enforcement or any rights or remedies of Agent in, and the monitoring of, any Insolvency Proceeding; and (viii) any lack other action taken by Agent or any Lender to enforce any of validity the rights or enforceability remedies of Agent against any Obligor or Account Debtor or to enforce collection of any of the Obligations or payments with respect to any of the Collateral. All amounts chargeable to Borrowers under this Agreement SECTION 3.4 shall constitute Obligations that are secured by all of the Collateral and shall be payable ON DEMAND to Agent. Borrowers shall also reimburse Agent for expenses incurred by Agent in its administration of any of the Collateral to the extent and in the manner provided in SECTION 8 hereof or in any of the other Loan Documents;
(ii) the existence of any claim. The foregoing shall be in addition to, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may and shall not be acting)construed to limit, any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms provision of any of the Loan Documents; orDocuments regarding the reimbursement by Borrowers of costs, expenses or liabilities suffered or incurred by Agent or any Lender.
3.4.2. If at any time Agent or (vwith the prior consent of Agent) the occurrence any Lender shall agree to indemnify any Person against losses or damages that such Person may suffer or incur in its dealings or transactions with Borrowers, or shall guarantee or otherwise assure payment of any Default liability or Unmatured Default.
(b) obligation of Borrowers to such Person, or otherwise shall provide assurances of Borrowers' payment or performance under any agreement with such Person, including indemnities, guaranties or other assurances of payment or performance given by Agent or any Lender with respect to Banking Relationship Debt, then the Contingent Obligation of Agent or any Lender providing any such indemnity, guaranty or other assurance of payment or performance, together with any payment made or liability incurred by Agent or any Lender in connection therewith, shall constitute Obligations that are secured by the Collateral and Borrowers shall repay, ON DEMAND, any amount so paid or any liability incurred by Agent or any Lender in connection with any such indemnity, guaranty or assurance. Nothing herein shall be construed to impose upon Agent or any Lender any obligation to provide any such indemnity, guaranty or assurance. The Issuer foregoing agreement of Borrowers shall promptly notify the applicable Borrower apply whether or not such indemnity, guaranty or assurance is in writing or oral and regardless of any draw under a FacilityBorrower's knowledge of the existence thereof, shall survive termination of the Commitments and Full Payment of the Obligations and any other provisions of the Loan Documents regarding reimbursement or indemnification by Borrowers of costs, expenses or liabilities suffered or incurred by Agent or any Lender.
Appears in 1 contract
Reimbursement Obligations. (a) Each 2.4.1. Borrower agrees to pay to the Issuer the amount of shall reimburse Agent and each Lender for all Reimbursement Obligationsreasonable legal, interest accounting, appraisal and other amounts payable to the Issuer under fees and expenses incurred by Agent or any Lender in connection with any Facility Letter (i) the negotiation and preparation of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
DIP Financing Documents, any amendment or modification thereto, any waiver of any Default or Event of Default thereunder, or any restructuring or forbearance with respect thereto; (iii) any lack the administration of validity or enforceability of the DIP Financing Documents and the transactions contemplated thereby, to the extent that such fees and expenses are expressly provided for in this Agreement or any of the other Loan DIP Financing Documents;
; (iiiii) action taken to perfect or maintain the existence perfection or priority of any claim, setoff, defense of Agent's Liens with respect to any of the Collateral; (iv) any inspection of or other right which audits conducted with respect to any Borrower of Borrower's books and records or any Subsidiary may have at of the Collateral; (v) any time effort to verify, protect, preserve, or restore any of the Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any of the Collateral; (vi) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any IssuerAgent, any Lender, any Obligor or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, whether in connection with this Agreementperfection or priority of any of Agent's Liens thereon), any Facility Letter of Creditthe DIP Financing Documents or the validity, the transactions contemplated herein allowance or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance amount of any of the terms Obligations; (vii) the protection or enforcement of any rights or remedies of Agent or any Lender in any Insolvency Proceeding; and (viii) any other action taken by Agent or any Lender to enforce any of the rights or remedies of Agent or such Lender against any Obligor or any Account Debtors to enforce collection of any of the Loan Documents; or
(v) Obligations or payments with respect to any of the occurrence Collateral. All amounts chargeable to Borrower under this SECTION 2.4 shall constitute Obligations that are secured by all of the Collateral and shall be payable ON DEMAND to Agent. Borrower shall also reimburse Agent for reasonable expenses incurred by Agent in its administration of any Default of the Collateral to the extent and in the manner provided in SECTION 7 hereof or Unmatured Defaultin any of the other DIP Financing Documents. The foregoing shall be in addition to, and shall not be construed to limit, any other provision of any of the DIP Financing Documents regarding the reimbursement by Borrower of costs, expenses or liabilities suffered or incurred by Agent or any Lender.
2.4.2. If at any time Agent or (bwith the consent of Agent) any Lender shall agree to indemnify any Person (including Bank) against losses or damages that such Person may suffer or incur in its dealings or transactions with Borrower, or shall guarantee any liability or obligation of Borrower to such Person, or otherwise shall provide assurances of Borrower's payment or performance under any agreement with such Person, including indemnities, guaranties or other assurances of payment or performance given by Agent or any Lender with respect to Cash Management Agreements or Letters of Credit, then the Contingent Obligation of Agent or any Lender providing any such indemnity, guaranty or other assurance of payment or performance, together with any payment made or liability incurred by Agent or any Lender in connection therewith, shall constitute Obligations that are secured by the Collateral and Borrower shall repay, ON DEMAND, any amount so paid or any liability incurred by Agent or any Lender in connection with any such indemnity, guaranty or assurance. Nothing herein shall be construed to impose upon Agent or any Lender any obligation to provide any such indemnity, guaranty or assurance. The Issuer foregoing agreement of Borrower shall promptly notify apply regardless of Borrower's knowledge of the applicable existence thereof, and shall be in addition to any of the provision of the DIP Financing Documents regarding reimbursement by Borrower of costs, expenses or liabilities suffered or incurred by Agent or any draw under a FacilityLender.
Appears in 1 contract
Samples: Post Petition Loan and Security Agreement (Drypers Corp)
Reimbursement Obligations. (a) Each Borrower agrees The Borrowers agree to pay to the Issuer Agent the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer Agent under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company Borrowers or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower the Trust or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any the Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower the Trust or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respectrespect (provided that, if all Reimbursement Obligations have been paid in full and there is no Default or Unmatured Default, the Issuer shall assign, without recourse, representation or warranty, to the Borrowers any claim, if any, it may have against any person that has drawn on a Facility Letter of Credit pursuant to a draft, certificate or other document which was forged, fraudulent, invalid or insufficient in any respect or any statement therein being true or inaccurate in any respect pursuant to such Facility Letter of Credit);
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or;
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower Borrowers of any draw under a Facility
Appears in 1 contract
Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in 37 44 connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-offsetoff, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 1 contract
Samples: 5 Year Revolving Credit Agreement (Arvinmeritor Inc)
Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer the amount of 2.4.1. Borrowers shall reimburse Lender, for all Reimbursement Obligationslegal, interest accounting, appraisal and other amounts payable to the Issuer under or fees and expenses actually incurred by Lender (including reasonable fees and expenses of Lender Professionals actually incurred) in connection with any Facility Letter (i) the negotiation and preparation of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
DIP Financing Documents, any amendment or modification thereto, any waiver of any Default or Event of Default thereunder, or any restructuring or forbearance with respect thereto; (iii) any lack the administration of validity or enforceability of the DIP Financing Documents and the transactions contemplated thereby, to the extent that such fees and expenses are expressly provided for in this Agreement or any of the other Loan DIP Financing Documents;
; (iiiii) action taken to perfect or maintain the existence perfection or priority of any claim, setoff, defense of Lender's Liens with respect to any of the Collateral; (iv) any inspection of or other right which audits conducted with respect to any Borrower of Borrowers' books and records or any Subsidiary may have at of the Collateral; (v) any time effort to verify, protect, preserve, or restore any of the Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any of the Collateral; (vi) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, either Borrower or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, whether in connection with this Agreementperfection or priority of any of Lender's Liens thereon), any Facility Letter of Creditthe DIP Financing Documents or the validity, the transactions contemplated herein allowance or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance amount of any of the terms Obligations; (vii) the protection or enforcement of any rights or remedies of Lender in any Insolvency Proceeding; and (viii) any other action taken by Lender to enforce any of the rights or remedies of Lender against either Borrower or any Account Debtors to enforce collection of any of the Loan Documents; or
(v) Obligations or payments with respect to any of the occurrence Collateral. All amounts chargeable to Borrowers under this SECTION 2.4 shall constitute Obligations that are secured by all of the Collateral and shall be payable ON DEMAND to Lender. Borrowers shall also reimburse Lender for expenses incurred by Lender in its administration of any Default of the Collateral to the extent and in the manner provided in SECTION 7 hereof or Unmatured Defaultin any of the other DIP Financing Documents. The foregoing shall be in addition to, and shall not be construed to limit, any other provision of any of the DIP Financing Documents regarding the reimbursement by Borrowers of costs, expenses or liabilities suffered or incurred by Lender.
2.4.2. If at any time Lender shall agree to indemnify any Person (bincluding Bank) The Issuer against losses or damages that such Person may suffer or incur in its dealings or transactions with Borrowers, or shall promptly notify guarantee any liability or obligation of a Borrower to such Person, or otherwise shall provide assurances of a Borrower's payment or performance under any agreement with such Person, including indemnities, guaranties or other assurances of payment or performance given by Lender with respect to Cash Management Agreements, Interest Rate Contracts or Letters of Credit, then each Borrower shall indemnify and defend Lender and shall hold it harmless from and against any and all liability Lender may have under any such indemnity, guaranty or assurance, and any amounts so paid by Lender shall be repaid to them immediately by each Borrower. Each Borrower's agreement to indemnify and defend Lender shall constitute part of the applicable Obligations that are secured by the Collateral and each Borrower of shall repay, ON DEMAND, any draw under a Facilityamount so paid or any liability incurred by Lender in connection with any such indemnity, guaranty or assurance, except that repayment with respect to any LC Support shall be due on the Reimbursement Date as provided in SECTION 1.2.1
Appears in 1 contract
Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company any Borrower or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 1 contract
Reimbursement Obligations. (a) Each The applicable Borrower’s obligation to reimburse LC Disbursements shall be absolute, unconditional and irrevocable, and each Borrower agrees to pay to the applicable Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the such Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the that such Borrower, the Company or any Subsidiary may have at any time against the any Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which that any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility 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;; 509265-1946-Active.21307007.121307007.7
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or;
(v) the occurrence of any Default or Unmatured Default;
(vi) payment by the Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; or
(vii) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.15.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.
(b) The applicable Issuer shall promptly notify the applicable Borrower of any draw under a FacilityFacility Letter of Credit (any such draw, an “LC Disbursement”). Such Borrower shall reimburse such LC Disbursement in the currency of such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 1:00 P.M., Chicago time, on the Business Day immediately following the day that such Borrower receives such notice; provided that a Borrower may, subject to the conditions to borrowing set forth herein, request that such payment be financed, if applicable given the currency of the LC Disbursement, with a Revolving Credit Loan or Swing Loan in an equivalent amount and, to the extent so financed, such Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Revolving Credit Loan or Swing Loan. Any Reimbursement Obligation with respect to any Facility Letter of Credit shall bear interest from the date of the relevant drawings under the pertinent Facility Letter of Credit at (i) in the case of such Obligations denominated in U.S. Dollars, the interest rate for Floating Rate Loans or (ii) in the case of such Obligations denominated in an Available Foreign Currency, at the correlative floating rate of interest customarily applicable to similar extensions of credit to corporate borrowers denominated in such currency in the country of issue of such currency, as reasonably determined by the Administrative Agent. In addition to its other rights, the Issuers shall also have all rights for indemnification and reimbursement as each Lender is entitled under this Agreement.
Appears in 1 contract
Reimbursement Obligations. (a) Each If a disbursement by Issuing Bank is made under any Letter of Credit, Borrower agrees to shall pay to the Issuer Agent within two (2) Business Days after notice of any such disbursement is received by Borrower, the amount of all Reimbursement Obligations, interest and other amounts payable to each such disbursement made by Issuing Bank under the Issuer under or in connection with any Facility Letter of Credit issued (if such payment is not sooner effected as may be required under this Section 2.10 or under other provisions of the Letter of Credit), together with interest on behalf the amount disbursed from and including the date of disbursement until payment in full of such disbursed amount at a varying rate per annum equal to Daily Simple SOFR plus the Applicable Margin.. The obligations of Borrower immediately when dueunder this Agreement with respect to each Letter of Credit shall be absolute, irrespective unconditional and irrevocable and shall be paid or performed strictly in accordance with the terms of this Agreement under all circumstances whatsoever, including, but only to the fullest extent permitted by applicable law, the following circumstances: (i) any lack of validity or enforceability of this Agreement, any Letter of Credit or any of the Security Documents; (ii) any amendment or waiver of (including any default), or any consent to departure from this Agreement (except to the extent permitted by any amendment or waiver), any Letter of Credit or any of the Security Documents; (iii) the existence of any claim, set-off, defense or other right rights which the Borrower, the Company or any Subsidiary Borrower may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence beneficiary of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person Persons for whom any such beneficiary or any such transferee may be acting), any IssuerIssuing Bank, Agent, any Lender, Lender or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the Security Documents, the transactions contemplated herein hereby or any unrelated transactions transaction; (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iiiiv) any statement, certificate, draft, certificate notice or any other document presented under the Facility any Letter of Credit proving proves to be have been forged, fraudulent, insufficient or invalid or insufficient in any respect or any statement therein being proves to have been untrue or inaccurate in any respect;
respect whatsoever; (ivv) payment by Issuing Bank under any Letter of Credit against presentation of a draft or certificate which appears on its face to comply, but does not comply, with the surrender terms of such Letter of Credit; (vi) any affiliation between Issuing Bank and any Lender, and (vii) any other circumstance or impairment of any security for the performance happening whatsoever, whether or observance of not similar to any of the terms foregoing. Notwithstanding anything in this Agreement to the contrary, Borrower will not be liable for payment or performance that results from the gross negligence or willful misconduct of Issuing Bank, except where Borrower or any Subsidiary actually recovers the proceeds for itself or Issuing Bank of any of the Loan Documents; or
(v) the occurrence of any Default payment made by Issuing Bank in connection with such gross negligence or Unmatured Defaultwillful misconduct.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 1 contract
Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-offsetoff, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 1 contract
Reimbursement Obligations. (a1) Each The Borrower agrees to pay to the Issuer Administrative Agent, without duplication, the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer Administrative Agent under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-offsetoff, defense or other right which the Borrower, the Company Borrower or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(ia) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(iib) the existence of any claim, setoff, defense or other right which any the Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any the Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any the Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iiic) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respectrespect (provided that, if all Reimbursement Obligations have been paid in full and there is no Default or Unmatured Default, the Issuer shall assign, without recourse, representation or warranty, to the Borrower any claim, if any, it may have against any person that has drawn on a Facility Letter of Credit pursuant to a draft, certificate or other document which was forged, fraudulent, invalid or insufficient in any respect or any statement therein being true or inaccurate in any respect pursuant to such Facility Letter of Credit);
(ivd) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or;
(ve) the occurrence of any Default or Unmatured Default.
(b2) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 1 contract
Reimbursement Obligations. (a) Each The Borrower hereby absolutely, unconditionally and irrevocably agrees to pay to reimburse Administrative Agent immediately upon demand by Administrative Agent, and in immediately available funds, for any payment or disbursement made by Administrative Agent under any Letter of Credit. The obligations of the Issuer the amount of all Reimbursement ObligationsBorrower under this Agreement, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf and any Application to reimburse the Administrative Agent for a drawing under a Letter of such Credit shall be unconditional and irrevocable, and shall be paid strictly in accordance with the term of this Agreement and each Application under all circumstances, including the following:
(i) any lack of validity of enforceability of this Agreement or any Application;
(ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of the Borrower immediately when due, irrespective in respect of any Letter of Credit or any other amendment or waiver of or any consent to departure from all or any of the provisions of this Agreement or any Application;
(iii) the existence of any claim, set-off, defense or other right which that the Borrower, the Company Borrower or any Subsidiary of the Borrower may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), any Issuer, any Lender, the Administrative Agent or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein hereby, any Application, any underlying transaction or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit)transaction;
(iiiiv) any draft, demand, certificate or any other document presented under the Facility any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit;
(ivv) any payment by the surrender Administrative Agent under any Letter of Credit against presentation of a draft or impairment of any security for the performance or observance of any of certificate that does not strictly comply with the terms of any Letter of Credit; or any payment made by the Administrative Agent under any Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of any Letter of Credit, including any proceeding arising in connection with any Debtor Relief Laws;
(vi) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Loan Documentsobligations of the Borrower in respect of any Letter of Credit; or
(vvii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or a guarantor. Payment shall be made by the Borrower with interest on the amount so paid or disbursed by Administrative Agent from and including the date payment is made under any Letter of Credit to and including the date of payment, at the lesser of (i) the occurrence Highest Lawful Rate, and (ii) the sum of the Base Rate in effect from time to time plus two percent (2%) per annum; provided, however, that if the -------- ------- Borrower would be permitted under the terms of Section 2.01, Section 2.02 and Section 4.02 hereof to borrow Advances in amounts at least equal to their reimbursement obligation for a drawing under any Letter of Credit, a Base Advance by each Lender, in an amount equal to such Lender's Revolver Specified Percentage, shall automatically be deemed made on the date of any Default such payment or Unmatured Defaultdisbursement made by Administrative Agent in the amount of such obligation and subject to the terms of this Agreement. The Administrative Agent shall notify each Lender that has a Revolver Specified Percentage in excess of zero of any such Base Advance deemed made.
(b) The Issuer Borrower hereby also agrees to pay to Administrative Agent immediately upon demand by Administrative Agent and in immediately available funds, as security for their reimbursement obligations in respect of the Letters of Credit under Section 3.03(a) hereof and any other amounts payable hereunder and under the Notes, an amount equal to the aggregate amount available to be drawn under Letters of Credit then outstanding, irrespective of whether the Letters of Credit have been drawn upon, upon an Event of Default. Any such payments shall promptly notify be deposited in a separate account designated "Pinnacle Special Account" or such other designation as Administrative Agent shall elect. All such amounts deposited with Administrative Agent shall be and shall remain funds of the applicable Borrower on deposit with Administrative Agent and may be invested by Administrative Agent as Administrative Agent shall determine. Such amounts may not be used by Administrative Agent to pay the drawings under the Letters of Credit; however, such amounts may be used by Administrative Agent as reimbursement for Letter of Credit drawings which Administrative Agent has paid. If any amounts in the Pinnacle Special Account shall have been deposited upon the occurrence of an Event of Default only and such Event of Default shall have been subsequently cured or waived and no other Event of Default exists, the Borrower shall be relieved of its obligations under this Section 3.03(b) until an Event of Default once again occurs. During the existence of an Event of Default but after the expiration of any draw Letter of Credit that was not drawn upon, the Borrower may direct the Administrative Agent to use any cash collateral for any such expired Letter of Credit, if any, to reduce the amount of the Obligations. Any amounts remaining in the Pinnacle Special Account, after the date of the expiration of all Letters of Credit and after all Obligations have been paid in full, shall be repaid to the Borrower promptly after such expiration and such payment in full.
(c) The obligations of the Borrower under this Section 3.03 will continue until all Letters of Credit have expired and all reimbursement obligations with respect thereto have been paid in full by the Borrower and until all other Obligations shall have been paid in full.
(d) The Borrower shall be obligated to reimburse Administrative Agent upon demand for all amounts paid under the Letters of Credit as set forth in Section 3.03(a) hereof; provided, however, if the Borrower for any reason fails to reimburse Administrative Agent in full upon demand, whether by borrowing Advances to pay such reimbursement obligations or otherwise, the Lenders shall reimburse Administrative Agent in accordance with each Lender's Revolver Specified Percentage for amounts due under this Article III and unpaid from the Borrower as set forth in Section 3.04 hereof; provided, however, that no such reimbursement made by the Lenders shall discharge the Borrower's obligations to reimburse Administrative Agent.
(e) The Borrower shall indemnify and hold Administrative Agent and each Lender, its officers, directors, representatives and employees harmless from loss for any claim, demand or liability which may be asserted against Administrative Agent or such indemnified party in connection with actions taken under the Letters of Credit or in connection therewith (including losses resulting from the negligence of Administrative Agent or such indemnified party), and shall pay Administrative Agent for reasonable fees of attorneys (who may be employees of Administrative Agent) and legal costs paid or incurred by Administrative Agent in connection with any matter related to the Letters of Credit, except for losses and liabilities incurred as a Facilitydirect result of the gross negligence or wilful misconduct of Administrative Agent or such indemnified party, as finally determined by a court of competent jurisdiction. If the Borrower for any reason fails to indemnify or pay Administrative Agent or such indemnified party as set forth herein in full, the Lenders shall indemnify and pay Administrative Agent upon demand, in accordance with each Lender's Revolver Specified Percentage of such amounts due and unpaid from the Borrower. The provisions of this Section 3.03(e) shall survive the termination of this Agreement.
Appears in 1 contract
Reimbursement Obligations. 2.4.1. Borrowers shall reimburse DIP Agent (a) Each Borrower agrees to pay and to the Issuer the amount extent provided in Section 4.6.2, DIP Lenders) for all Extraordinary Expenses. Borrowers shall also reimburse DIP Agent and, during any period that an Event of Default then exists, each DIP Lender, for all Reimbursement Obligationsaccounting, interest appraisal and other amounts payable to the Issuer under fees and expenses (including reasonable attorneys’ fees) incurred by DIP Agent or any DIP Lender in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective (i) the negotiation and preparation of any claimof the DIP Loan Documents, set-offany amendment or modification thereto, defense any waiver of any Default or other right which the BorrowerEvent of Default thereunder, the Company or any Subsidiary may have at restructuring or forbearance with respect thereto; (ii) the monitoring and administration of and actions relating to any time against of the Issuer or Chapter 11 Cases, any other Person, under all circumstances, including without limitationCollateral, any of the following circumstances:
(i) any lack of validity or enforceability of DIP Loan Documents and the transactions contemplated thereby, to the extent that such fees and expenses are expressly provided for in this Agreement or any of the other DIP Loan Documents;
; (iiiii) action taken to perfect or maintain the existence perfection or priority of any claimof DIP Agent’s Liens with respect to any of the Collateral; (iv) subject to the limits of Section 2.2.4, setoffeach audit, defense inspection, examination or other right which appraisal with respect to any Borrower Obligor or Collateral, whether prepared by DIP Agent’s personnel or a third party; (v) any Subsidiary may have at effort to verify, protect, preserve, or restore any time against a beneficiary named in a Facility Letter of Credit the Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any transferee of any Facility Letter the Collateral; (vi) subject to the provisions of Credit (or any Person for whom any such transferee may be acting)Section 14.2 of this Agreement, any Issuerlitigation, contest, dispute, suit, proceeding or action (whether instituted by or against DIP Agent, any DIP Lender, any Obligor or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, whether in connection with this Agreementperfection or priority of any of DIP Agent’s Liens thereon), any Facility Letter of Creditthe DIP Loan Documents, or the transactions contemplated herein validity, allowance or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance amount of any of the terms Obligations; (vii) the protection or enforcement of any rights or remedies of DIP Agent or any DIP Lender in any of the Chapter 11 Cases; (viii) any actions taken to maintain any insurance required hereunder or under any other DIP Loan Document; and (ix) any other action taken by DIP Agent or any DIP Lender to enforce any of the rights or remedies of DIP Agent or such DIP Lender against any Obligor or any Account Debtors to enforce collection of any of the Obligations or payments with respect to any of the Collateral. All amounts chargeable to Borrowers under this Section 2.4 shall constitute Obligations that are secured by all of the Collateral and shall be payable ten (10) days after Borrowers receive demand therefor from DIP Agent or applicable DIP Lender; provided, however, upon and during the continuance of an Event of Default, such fees and expenses shall be due and payable on demand. Borrowers shall also reimburse DIP Agent for reasonable expenses incurred by DIP Agent in its administration of any of the Collateral to the extent and in the manner provided in Section 7 hereof or in any of the other DIP Loan Documents; or
(v) the occurrence . The foregoing shall be in addition to, and shall not be construed to limit, any other provision of any Default of the DIP Loan Documents regarding the reimbursement by Borrowers of costs, expenses or Unmatured Defaultliabilities suffered or incurred by DIP Agent or any DIP Lender.
2.4.2. If at any time DIP Agent or (bwith the consent of DIP Agent) The Issuer any DIP Lender shall promptly notify the applicable Borrower agree to indemnify any Person against losses or damages that such Person may suffer or incur in its dealings or transactions with any or all of Borrowers, or shall guarantee any liability or obligation of any draw or all of Borrowers to such Person, or otherwise shall provide assurances of any Borrower’s payment or performance under a Facilityany agreement with such Person, including indemnities, guaranties or other assurances of payment or performance given by DIP Agent or any DIP Lender with respect to Bank Products or Letters of Credit, then the Contingent Obligation of DIP Agent or any DIP Lender providing any such indemnity, guaranty or other assurance of payment or performance, together with any payment made or liability incurred by DIP Agent or any DIP Lender in connection therewith, shall constitute Obligations that are secured by the Collateral and, subject to the provisions of Section 14.2 of this Agreement, Borrowers shall repay, on demand, any amount so paid or any liability incurred by DIP Agent or any DIP Lender in connection with any such indemnity, guaranty or assurance. Nothing herein shall be construed to impose upon DIP Agent or any DIP Lender any obligation to provide any such indemnity, guaranty or assurance except to the extent provided in Section 1.2 hereof. The foregoing agreement of Borrowers shall apply whether or not such indemnity, guaranty or assurance is in writing or oral and regardless of any Borrower’s knowledge of the existence thereof, and shall be in addition to any provision of the DIP Loan Documents regarding reimbursement by Borrowers of costs, expenses or liabilities suffered or incurred by DIP Agent or any DIP Lender.
Appears in 1 contract
Samples: Post Petition Loan and Security Agreement (Standard Register Co)
Reimbursement Obligations. (a) Each Borrower agrees to pay 3.3.1. Borrowers shall reimburse the applicable Agent or, to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitationextent set forth below, any Collateral Agent (and during any period that an Event of the following circumstancesDefault exists, each Lender) for:
(i) all reasonable legal, accounting, appraisal, consulting and other fees and out-of-pocket expenses incurred by such Agent (and during any lack period that an Event of validity Default exists, any Lender) in connection with (a) the negotiation and preparation of any of the Credit Documents or enforceability any amendment or modification thereto; (b) the administration of this Agreement the Credit Documents and the transactions contemplated thereby, subject to Section 3.2.2 hereof; and (c) any inspection of or audits conducted with respect to such Borrower’s or any Canadian Subsidiary Guarantor’s, as applicable, books and records or any of the other Loan Documents;Collateral, subject to Section 3.2.2 hereof; and
(ii) all legal, accounting, appraisal, consulting and other fees and out-of-pocket expenses incurred by the existence applicable Agent (and during any period that an Event of Default exists, any Lender) in connection with: (a) any effort to verify, protect, appraise (subject to Section 3.2.2 hereof), preserve, or restore any of the Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any of the Collateral; (b) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or against such Agent, any applicable Collateral Agent, any applicable Lender, any applicable Borrower or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, perfection or priority of such Agent’s Liens thereon), any of the Credit Documents or the validity, allowance or amount of any claimof the Obligations (unless such litigation is between Borrowers and the Canadian Subsidiary Guarantors and/or Agents and/or Collateral Agents and/or Lenders and a court having jurisdiction renders a final, setoffnon appealable judgment against Agents and/or Collateral Agents and/or Lenders, defense in which event Borrowers shall not be liable for, as applicable, Agents’, Collateral Agents’ or Lenders’ costs of such litigation); (c) the protection or enforcement of any rights or remedies of such Agent, any applicable Collateral Agent or any applicable Lender in any Insolvency Proceeding; (d) any other right which action taken by such Agent, any applicable Collateral Agent or any applicable Lender to enforce any of the rights or remedies of such Agent, such Collateral Agent or such Lender against any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving Account Debtors to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance enforce collection of any of the terms Obligations or payments with respect to any of the Collateral; (e) any waiver of any Default or Event of Default under any of the Credit Documents, or any restructuring or forbearance with respect thereto; and (f) any action taken to perfect or maintain the perfection or priority of the applicable Agent’s Liens with respect to any of the Collateral. All amounts chargeable to Borrowers under this Section 3.3 shall constitute Obligations that are secured by all of the applicable Collateral and shall be payable on demand to the applicable Agent. Borrowers also shall reimburse the applicable Agent for expenses incurred by such Agent in its administration of any of the Loan Collateral to the extent and in the manner provided in Section 8 hereof or in any of the other Credit Documents; or. The foregoing shall be in addition to, and shall not be construed to limit, any other provision of any of the Credit Documents regarding the reimbursement by Obligors of costs, expenses or liabilities suffered or incurred by any Agent, any Collateral Agent or any Lender.
3.3.2. If at any time, in connection with the administration of the Credit Documents or the normal day-to-day operations and maintenance of the Loans, Administrative Agent or (vwith the consent of Administrative Agent) BASMLPFSI or any Lender shall agree to indemnify any Person (including Bank of America or Bank of America-Canada Branch) against losses or damages that such Person may suffer or incur in its dealings or transactions with Borrowers and any Canadian Subsidiary Guarantor, or shall guarantee or provide assurance of payment or performance of any liability or obligation of Borrowers or any Canadian Subsidiary Guarantor to such Person, including with respect to Bank Product Debt, then the Contingent Obligation of any Agent or any Lender providing any such indemnity, guaranty or other assurance of payment or performance, together with any payment made or liability incurred by any Agent or any Lender in connection therewith, shall constitute Obligations that are secured by the Collateral and Borrowers shall repay, on demand, any amount so paid or any liability incurred by any Agent or any Lender in connection with any such indemnity, guaranty or assurance, except that repayment pursuant to Section 2.3.3(i) shall be due as set forth in that Section. Nothing herein shall be construed to impose upon any Agent or any Lender any obligation to provide any such indemnity, guaranty or assurance except to the extent provided in Section 2.3 hereof. Administrative Agent shall use reasonable efforts to notify Borrower Agent of such indemnity, guaranty or assurance to the extent that such indemnity, guaranty or assurance has not otherwise been expressly requested by Borrowers.
3.3.3. In the event that any financial statement or Borrowing Base Certificate delivered pursuant to Section 10.1.3 or 8.4 is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected would have led to a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) Borrowers shall immediately deliver to Administrative Agent correct financial statements and a correct Borrowing Base Certificate for such Applicable Period, (ii) the occurrence of Applicable Margin shall be determined by reference to the correct financial statements and corrected Borrowing Base Certificate (but in no event shall Lenders owe any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facilityamounts to
Appears in 1 contract
Samples: Credit Agreement (Ryerson Inc.)
Reimbursement Obligations. (a) Each The Borrower agrees to pay to the Issuer of a Letter of Credit (i) on each date that any amount is drawn under each Letter of Credit (or, if any draw is paid by the Issuer after 3:00 p.m. (Chicago time) on such date, on the next succeeding Business Day) a sum (and interest on such sum as provided in clause (ii) below) equal to the amount so drawn plus all other charges and expenses with respect thereto specified in Section 3.9 or in the applicable -25- 36 Reimbursement Agreement and (ii) interest on any and all amounts remaining unpaid under this Section 3.4 until payment in full at the rate per annum, computed for actual days elapsed based on a 365 or 366 day year, as applicable, equal to (A) the Alternate Base Rate for such day for the first two days following the due date of any Reimbursement Obligations, and (B) the Alternate Base Rate for such day plus 2% per annum. The Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or Obligations owing in connection with respect of any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including including, without limitation, any of the following circumstances:
: (iw) any lack of validity or enforceability of this Agreement or any of the other Loan Facility Documents;
; (iix) the existence of any claim, setoffset-off, defense or other right which any the Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or Credit, any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, Lender or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions transaction between any the Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
; (iiiy) the validity, sufficiency or genuineness of any draft, certificate or any other document presented under which the Facility Issuer has determined in good faith complies on its face with the terms of the applicable Letter of Credit proving Credit, even if such document should later prove to be have been forged, fraudulent, invalid or insufficient in any respect or any statement therein being shall have been untrue or inaccurate in any respect;
; or (ivz) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Defaulthereof.
(b) Notwithstanding any provisions to the contrary in any Reimbursement Agreement, the Borrower agrees to reimburse the Issuer for amounts which the Issuer pays under such Letter of Credit no later than the time specified in this Agreement. If the Borrower does not pay any such Reimbursement Obligations when due, the Borrower shall be deemed to have immediately requested that the Lenders make an Alternate Base Rate Advance under this Agreement in a principal amount equal to such unreimbursed Reimbursement Obligations. The Issuer Agent shall promptly notify the applicable Lenders of such deemed request and, without the necessity of compliance with the requirements of Sections 2.5, 3.5 and 5.2, each Lender shall make available to the Agent its Revolving Credit Loan in the manner prescribed for Alternate Base Rate Advances. The proceeds of such Revolving Credit Loans shall be paid over by the Agent to the Issuer for the account of the Borrower in satisfaction of such unreimbursed Reimbursement Obligations, which shall thereupon be deemed satisfied by the proceeds of, and replaced by, such Alternate Base Rate Advance.
(c) If the Issuer makes a payment on account of any Letter of Credit and is not concurrently reimbursed therefor by the Borrower and if for any reason an Alternate Base Rate Advance may not be made pursuant to paragraph (b) above, then as promptly as practical during normal banking hours on the date of its receipt of such notice or, if not practicable on such date, not later than noon (Chicago time) on the Business Day immediately succeeding such date of notification, each Lender shall deliver to the Agent for the account of the Issuer, in immediately available funds, the purchase price for such Lender's interest in such unreimbursed Reimbursement Obligations, which shall be an amount equal to such Lender's pro-rata share of such payment. Each Lender shall, upon demand by the Issuer, pay the Issuer interest on such Lender's pro-rata share of such draw from the date of payment by the Issuer on account of such Letter of Credit until the date of delivery of such funds to the Issuer by such Lender at a rate per annum, computed for actual days elapsed based on a 360-day year, equal to the Federal Funds Effective Rate for such period; provided, that such
(d) At any time after the Issuer has made a payment on account of any Letter of Credit and has received from any other Lender such Lender's pro-rata share of such payment, such Issuer shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Borrower for such payment, or of any other amount from the Borrower or any other Person in respect of such payment (including, without limitation, any payment of interest or penalty fees and any payment under any collateral account agreement of the Borrower or any Facility Document but excluding any transfer of funds from any other Lender pursuant to Section 3.4(b)), transfer to such other Lender such other Lender's ratable share of such reimbursement or other amount; provided, that interest shall accrue for the benefit of such Lender from the time such Issuer has made a Facilitypayment on account of any Letter of Credit; provided, further, that in the event that the receipt by the Issuer of such reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under the United States Bankruptcy Code or is otherwise required to be returned, such Lender shall promptly return to the Issuer any portion thereof previously transferred by the Issuer to such Lender, but without interest to the extent that interest is not payable by the Issuer in connection therewith.
(e) All payments in respect of Reimbursement Obligations shall be in Dollars at the Issuer's selling rate for cable transfers to the place of payment of the Letter of Credit current on the date of payment or of the Issuer's settlement of its obligation, as the Issuer may require or, at the Issuer's election, in the currency in which the Issuer was required to pay such Letter of Credit. If, for any cause, on the date of payment or settlement, as the case may be, there is no selling rate or other rate of exchange generally current in Chicago for effecting such transfers, the Borrower will pay the Issuer on demand an amount in Dollars equivalent to the Issuer's actual cost of settlement on its obligation however or whenever the Issuer shall make such settlement, with interest at the Alternate Base Rate from the date of settlement to the date of payment.
Appears in 1 contract
Reimbursement Obligations. (a) Each Borrower agrees to shall pay to the Issuer the amount of as directed by, or reimburse to, Lender for all Reimbursement Obligationsreasonable and documented legal, interest accounting, appraisal and other amounts payable to the Issuer under or fees and expenses incurred by Lender in connection with any the Lending Facility Letter of Credit issued on behalf of such Borrower immediately when dueincluding, irrespective but not limited to, the following: (i) the negotiation and preparation of any claimof the Financing Documents, set-offany amendment or modification to any of the Financing Documents, defense any waiver of any Default or other right which the BorrowerEvent of Default thereunder, the Company or any Subsidiary may have at restructuring or forbearance with respect thereto; (ii) the administration of the Financing Documents and the transactions contemplated thereby; (iii) any time action reasonably taken to perfect or maintain the perfection or priority of any Liens, including Lender’s Liens granted herein, with respect to any of the Collateral; (iv) any inspection of or audits conducted with respect to Borrower’s books and records or any of the Collateral; (v) any effort to verify, protect, preserve, or restore any of the Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any of the Collateral; (vi) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or against the Issuer Lender, Borrower or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, under all circumstancesperfection or priority of any Liens, including without limitationLender’s Liens, thereon), any of the following circumstances:
Financing Documents or the validity, allowance or amount of any of the Obligations; (ivii) the protection or enforcement of any rights or remedies of Lender in any Insolvency Proceeding; and (viii) any lack other action taken by Lender to enforce any of validity the rights or enforceability remedies of Lender against Borrower or any Account to enforce collection of any of the Obligations or payments with respect to any of the Collateral or Property. All amounts chargeable to Borrower under this Agreement Section 2.3 shall constitute Obligations that are secured by all of the Collateral and shall be payable to Lender on demand after submission to Borrower of reasonable verification of such amount. Borrower shall also reimburse Lender for reasonable expenses incurred by Lender in its administration of any of the Collateral to the extent and in the manner provided in Article 7 or in any of the other Loan Financing Documents;
(ii) the existence of any claim. The foregoing shall be in addition to, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may and shall not be acting)construed to limit, any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance provision of any of the terms Financing Documents regarding the reimbursement by Borrower of any of the Loan Documents; or
(v) the occurrence of any Default costs, expenses or Unmatured Defaultliabilities incurred by Lender.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a FacilityARTICLE 3 RESERVED
Appears in 1 contract
Samples: Debtor in Possession Financing Agreement (Skye International, Inc)
Reimbursement Obligations. (a) Each EachThe applicable Borrower's obligation to reimburse LC Disbursements shall be absolute, unconditional and irrevocable, and each Borrower agrees to pay to the applicable Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the thesuch Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the that thesuch Borrower, the Company or any Subsidiary may have at any time against the theany Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which that any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default;
(vi) payment by the Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; or
(vii) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower's obligations hereunder.
(b) The applicable Issuer shall promptly notify the applicable Borrower of any draw under a FacilityFacility Letter of Credit. Such Borrower shall reimburse the applicable Issuer for drawings under a Facility Letter of Credit issued by it on behalf of such Borrower promptly after the payment by the applicable Issuer. Any Reimbursement Obligation with respect to any Facility Letter of Credit shall bear interest from the date of the relevant drawings under the pertinent Facility Letter of Credit at (i) in the case of such Obligations denominated in U.S. Dollars, the interest rate for Floating Rate Loans or (ii) in the case of such Obligations denominated in an Available Foreign Currency, at the correlative floating rate of interest customarily applicable to similar extensions of credit to corporate borrowers denominated in such currency in the country of issue of such currency, as reasonably determined by the Administrative Agent. In addition to its other rights, the Issuers shall also have all rights for indemnification and reimbursement as each Lender is entitled under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Diebold Inc)
Reimbursement Obligations. (a) Each Borrower agrees to pay to the LC Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the LC Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company any Borrower or any Subsidiary may have at any time against the LC Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any LC Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) The LC Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 1 contract
Reimbursement Obligations. Amounts paid by the Agent Bank upon any drawing under a Letter of Credit shall be reimbursed by the Borrower on or before 1:00 p.m. New York City time on the date of honoring such drawing (the "Reimbursement Time") as provided in Section 3.5. The Borrower's obligation to reimburse the Agent Bank under this Section 3.4 for payments and disbursements made by the Agent Bank in respect of each drawing shall be absolute and unconditional under any and all circumstances and irrespective of any set-off, counterclaim or defense to payment which the Borrower may have or have had against the Agent Bank or the Lenders (other than any set-off, counterclaim or defense arising out of an act or acts of gross negligence or willful misconduct by the Agent Bank or the Lenders), including any defense based on (a) Each Borrower agrees to pay to the Issuer the amount failure of all Reimbursement Obligations, interest and other amounts payable to the Issuer any presentation or demand for payment under or in connection with any Facility Letter of Credit issued on behalf to conform to the terms of any Letter of Credit if the Borrower has requested in writing that the Agent Bank honor such Borrower immediately when dueLetter of Credit despite the non-conformance; (b) any nonapplication or misapplication by any beneficiary of the proceeds of any Letter of Credit; (c) the legality, irrespective validity, regularity or enforceability of any Letter of Credit; (d) any amendment or waiver of or any consent to or departure from this Agreement; (e) any exchange, release or non-perfection of any Collateral, or any release, amendment or waiver of or consent to or departure from any guaranty; (f) the existence of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary Borrower may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person entities for whom such beneficiary or any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility the transaction in respect of which such Letter of CreditCredit was issued, the transactions contemplated herein or any unrelated transactions transaction; (including g) any underlying transactions between presentation or demand under or transfer of any Borrower Letter of Credit or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate statement or any other document presented under the Facility any Letter of Credit proving to be unauthorized, forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
respect whatsoever; and (ivh) any law, order, regulation or custom in effect in the surrender places of negotiation or impairment payment of any security for the performance or observance Letter of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured DefaultCredit.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Appears in 1 contract
Reimbursement Obligations. The obligations of the Transferor to reimburse such L/C Issuer upon a drawing under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article II under all circumstances, including without regard to any of the following circumstances:
(ai) Each Borrower agrees to pay to any set-off, counterclaim, recoupment, defense or other right which such L/C Issuer may have against the Issuer Agent, the amount Transferor, the Seller, any Transferring Affiliate, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person for any reason whatsoever;
(ii) any lack of all Reimbursement Obligations, interest and other amounts payable to the Issuer under validity or in connection with enforceability of any Facility Letter of Credit issued or any set-off, counterclaim, recoupment, defense or other right which the Transferor, the Seller or a Transferring Affiliate on behalf of such Borrower immediately when duewhich a Letter of Credit has been issued may have against the Agent, irrespective the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person for any reason whatsoever;
(iii) any claim of breach of warranty that might be made by the Transferor, the Seller, any Transferring Affiliate or any L/C Issuer against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, defense or other right which the BorrowerTransferor, the Company Seller, any Transferring Affiliate or any Subsidiary may have at any time against the L/C Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary, any successor beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit or the proceeds thereof (or any Person Persons for whom any such transferee may be acting), any L/C Issuer, any Lenderthe Agent, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions transaction (including any underlying transactions transaction between any Borrower the Transferor or any Subsidiary Affiliates of the Transferor and the beneficiary named in for which any Facility Letter of CreditCredit was procured);;
(iiiiv) the lack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or any other document presented under the Facility any Letter of Credit Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent, invalid invalid, defective or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, even if the Agent, any Administrative Agent or the L/C Issuer has been notified thereof;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) payment by an L/C Issuer under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit other than as a result of the gross negligence or willful misconduct of such L/C Issuer;
(vi) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;
(vii) any failure by an L/C Issuer or any of the L/C Issuer’s Affiliates to issue any Letter of Credit in the form requested by the Transferor, unless such L/C Issuer has received written notice from the Transferor of such failure within three Business Days after such L/C Issuer shall have furnished the Transferor a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(viii) any Material Adverse Effect on the Transferor, the Seller, any Transferring Affiliate or any Affiliates thereof;
(ix) any breach of this Agreement or any Transaction Document by any party thereto;
(x) the occurrence or continuance of an insolvency proceeding with respect to the Transferor, any Default Transferring Affiliate or Unmatured Default.any Affiliate thereof;
(bxi) The Issuer the fact that a Termination Event or a Potential Termination Event shall promptly notify have occurred and be continuing;
(xii) the applicable Borrower fact that this Agreement or the obligations of the Transferor or the Collection Agent hereunder shall have been terminated; and
(xiii) any draw under a Facilityother circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Fresenius Medical Care AG & Co. KGaA)
Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
: (i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
; (ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
; (iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
; (iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
or (v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a FacilityFacility Letter of Credit. Such Borrower shall reimburse the applicable Issuer for drawings under a Facility Letter of Credit issued by it on behalf of such Borrower promptly after the payment by the Issuer. Any Reimbursement Obligation with respect to any Facility Letter of Credit shall bear interest from the date of the relevant drawings under the pertinent Facility Letter of Credit at (i) in the case of such Obligations denominated in U.S. Dollars, the interest rate for Floating Rate Loans or (ii) in the case of such Obligations denominated in an Agreed Foreign Currency, at the correlative floating rate of interest customarily applicable to similar extensions of credit to corporate borrowers denominated in such currency in the country of issue of such currency, as determined by the Agent. In addition to its other rights, the Issuers shall also have all rights for indemnification and reimbursement as each Lender is entitled under this Agreement.
Appears in 1 contract
Reimbursement Obligations. The obligations of the Transferor to reimburse such L/C Issuer upon a drawing under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article II under all circumstances, including without regard to any of the following circumstances:
(ai) Each Borrower agrees to pay to any set-off, counterclaim, recoupment, defense or other right which such L/C Issuer may have against the Issuer Agent, the amount Transferor, the Seller, any Transferring Affiliate, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person for any reason whatsoever;
(ii) any lack of all Reimbursement Obligations, interest and other amounts payable to the Issuer under validity or in connection with enforceability of any Facility Letter of Credit issued or any set-off, counterclaim, recoupment, defense or other right which the Transferor, the Seller or a Transferring Affiliate on behalf of such Borrower immediately when duewhich a Letter of Credit has been issued may have against the Agent, irrespective the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person for any reason whatsoever;
(iii) any claim of breach of warranty that might be made by the Transferor, the Seller, any Transferring Affiliate or any L/C Issuer against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, defense or other right which the BorrowerTransferor, the Company Seller, any Transferring Affiliate or any Subsidiary may have at any time against the L/C Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary, any successor beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit or the proceeds thereof (or any Person Persons for whom any such transferee may be acting), any L/C Issuer, any Lenderthe Agent, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions transaction (including any underlying transactions transaction between any Borrower the Transferor or any Subsidiary Affiliates of the Transferor and the beneficiary named in for which any Facility Letter of CreditCredit was procured);;
(iiiiv) the lack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or any other document presented under the Facility any Letter of Credit Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent, invalid invalid, defective or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, even if the Agent, any Administrative Agent or the L/C Issuer has been notified thereof;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) payment by an L/C Issuer under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit other than as a result of the gross negligence or willful misconduct of such L/C Issuer;
(vi) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;
(vii) any failure by an L/C Issuer or any of the L/C Issuer’s Affiliates to issue any Letter of Credit in the form requested by the Transferor, unless such L/C Issuer has received written notice from the Transferor of such failure within three Business Days after such L/C Issuer shall have furnished the Transferor a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(viii) any Material Adverse Effect on the Transferor, the Seller, any Transferring Affiliate or any Affiliates thereof;
(ix) any breach of this Agreement or any Transaction Document by any party thereto;
(x) the occurrence or continuance of an insolvency proceeding with respect to the Transferor, any Default Transferring Affiliate or Unmatured Default.any Affiliate thereof;
(bxi) The Issuer the fact that a Termination Event or a Potential Termination Event shall promptly notify have occurred and be continuing;
(xii) the applicable Borrower fact that this Agreement or the obligations of the Transferor or the Collection Agent hereunder shall have been terminated; and
(xiii) any draw under a Facilityother circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Fresenius Medical Care AG & Co. KGaA)
Reimbursement Obligations. The obligations of the Transferor to reimburse such L/C Issuer upon a drawing under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article II under all circumstances, including without regard to any of the following circumstances:
(ai) Each Borrower agrees to pay to any set-off, counterclaim, recoupment, defense or other right which such L/C Issuer may have against the Issuer Agent, the amount Transferor, the Seller, any Transferring Affiliate, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person for any reason whatsoever;
(ii) any lack of all Reimbursement Obligations, interest and other amounts payable to the Issuer under validity or in connection with enforceability of any Facility Letter of Credit issued or any set-off, counterclaim, recoupment, defense or other right which the Transferor, the Seller or a Transferring Affiliate on behalf of such Borrower immediately when duewhich a Letter of Credit has been issued may have against the Agent, irrespective the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person for any reason whatsoever;
(iii) any claim of breach of warranty that might be made by the Transferor, the Seller, any Transferring Affiliate or any L/C Issuer against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, defense or other right which the BorrowerTransferor, the Company Seller, any Transferring Affiliate or any Subsidiary may have at any time against the L/C Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary, any successor beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit or the proceeds thereof (or any Person Persons for whom any such transferee may be acting), any L/C Issuer, any Lenderthe Agent, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions transaction (including any underlying transactions transaction between any Borrower the Transferor or any Subsidiary Affiliates of the Transferor and the beneficiary named in for which any Facility Letter of CreditCredit was procured);;
(iiiiv) the lack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or any other document presented under the Facility any Letter of Credit Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent, invalid invalid, defective or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, even if the Agent, any Administrative Agent or the L/C Issuer has been notified thereof;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) payment by an L/C Issuer under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit other than as a result of the gross negligence or willful misconduct of such L/C Issuer;
(vi) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;
(vii) any failure by an L/C Issuer or any of the L/C Issuer’s Affiliates to issue any Letter of Credit in the form requested by the Transferor, unless such L/C Issuer has received written notice from the Transferor of such failure within three Business Days after such L/C Issuer shall have furnished the Transferor a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(viii) any Material Adverse Effect on the Transferor, the Seller, any Transferring Affiliate or any Affiliates thereof;
(ix) any breach of this Agreement or any Transaction Document by any party thereto;
(x) the occurrence or continuance of an insolvency proceeding with respect to the Transferor, any Default Transferring Affiliate or Unmatured Default.any Affiliate thereof;
(bxi) The Issuer the fact that a Termination Event or a Potential Termination Event shall promptly notify have occurred and be continuing;
(xii) the applicable Borrower fact that this Agreement or the obligations of the Transferor or the Collection Agent hereunder shall have been terminated; and
(xiii) any draw under a Facilityother circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Fresenius Medical Care AG & Co. KGaA)
Reimbursement Obligations. The obligations of the Transferor to reimburse such L/C Issuer upon a drawing under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Article II under all circumstances, including without regard to any of the following circumstances:
(ai) Each Borrower agrees to pay to any set-off, counterclaim, recoupment, defense or other right which such L/C Issuer may have against the Issuer Agent, the amount Transferor, the Seller, any Transferring Affiliate, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person for any reason whatsoever;
(ii) any lack of all Reimbursement Obligations, interest and other amounts payable to the Issuer under validity or in connection with enforceability of any Facility Letter of Credit issued or any set-off, counterclaim, recoupment, defense or other right which the Transferor, the Seller or a Transferring Affiliate on behalf of such Borrower immediately when duewhich a Letter of Credit has been issued may have against the Agent, irrespective the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person for any reason whatsoever;
(iii) any claim of breach of warranty that might be made by the Transferor, the Seller, any Transferring Affiliate or any L/C Issuer against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, defense or other right which the BorrowerTransferor, the Company Seller, any Transferring Affiliate or any Subsidiary may have at any time against the L/C Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary, any successor beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit or the proceeds thereof (or any Person Persons for whom any such transferee may be acting), any L/C Issuer, any Lenderthe Agent, the Administrative Agents, the Bank Investors, the Conduit Investors or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions transaction (including any underlying transactions transaction between any Borrower the Transferor or any Subsidiary Affiliates of the Transferor and the beneficiary named in for which any Facility Letter of CreditCredit was procured);;
(iiiiv) the lack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or any other document presented under the Facility any Letter of Credit Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent, invalid invalid, defective or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, even if the Agent, any Administrative Agent or the L/C Issuer has been notified thereof;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) payment by an L/C Issuer under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit other than as a result of the gross negligence or willful misconduct of such L/C Issuer;
(vi) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;
(vii) any failure by an L/C Issuer or any of the L/C Issuer’s Affiliates to issue any Letter of Credit in the form requested by the Transferor, unless such L/C Issuer has received written notice from the Transferor of such failure within three Business Days after such L/C Issuer shall have furnished the Transferor a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(viii) any Material Adverse Effect on the Transferor, the Seller, any Transferring Affiliate or any Affiliates thereof;
(ix) any breach of this Agreement or any Transaction Document by any party thereto;
(x) the occurrence or continuance of an insolvency proceeding with respect to the Transferor, any Default Transferring Affiliate or Unmatured Default.any Affiliate thereof;
(bxi) The Issuer the fact that a Termination Event or a Potential Termination Event shall promptly notify have occurred and be continuing;
(xii) the applicable Borrower fact that this Agreement or the obligations of the Transferor or the Collection Agent hereunder shall have been terminated; and
(xiii) any draw under a Facilityother circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Fresenius Medical Care AG & Co. KGaA)
Reimbursement Obligations. (a) Each The Obligations of the Borrower agrees to pay to reimburse the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer Lender upon a draw under or in connection with any Facility a Letter of Credit issued on behalf Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, this Section 2.9 under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claimset-off, setoffcounterclaim, recoupment, defense or other right which any Borrower Loan Party may have against the Lender or any Subsidiary of its Affiliates or any other Person for any reason whatsoever;
(ii) the failure of any Loan Party or any other Person to comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in Sections 2.1 [Revolving Credit Commitments], 2.5 [Revolving Credit Loan Requests], 2.6 [Making Revolving Credit Loans] or 7.2 [Each Loan or Letter of Credit] or as otherwise set forth in this Agreement for the making of a Revolving Credit Loan, it being acknowledged that such conditions are not required for the making of a Letter of Credit Borrowing under Section 2.9.3 [Disbursements, Reimbursement];
(iii) any lack of validity or enforceability of any Letter of Credit;
(iv) any claim of breach of warranty that might be made by any Loan Party or the Lender against any beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any Loan Party or the Lender may have at any time against a beneficiary, successor beneficiary named in a Facility any transferee or assignee of any Letter of Credit or any transferee of any Facility Letter of Credit the proceeds thereof (or any Person Persons for whom any such transferee may be acting), any Issuer, any Lender, the Lender or its Affiliates or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions transaction (including any underlying transactions transaction between any Borrower Loan Party or any Subsidiary Subsidiaries of a Loan Party and the beneficiary named in for which any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respectwas procured);
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or
(v) the occurrence lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in connection with any Letter of Credit, or the transport of any property or provision of services relating to a Letter of Credit, in each case even if the Lender or any of its Affiliates has been notified thereof;
(vi) payment by the Lender or any of its Affiliates under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit;
(vii) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;
(viii) any failure by the Lender or any of its Affiliates to issue any Letter of Credit in the form requested by any Loan Party, unless the Lender has received written notice from such Loan Party of such failure within three Business Days after the Lender shall have furnished such Loan Party a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;
(ix) any adverse change in the business, operations, properties, assets or condition (financial or otherwise) of any Loan Party or Subsidiaries of a Loan Party;
(x) any breach of this Agreement or any other Loan Document by any party thereto;
(xi) the occurrence or continuance of an Insolvency Proceeding with respect to any Loan Party;
(xii) the fact that an Event of Default or Unmatured Default.a Potential Default shall have occurred and be continuing;
(bxiii) The Issuer the fact that the Expiration Date shall promptly notify have passed or this Agreement or the applicable Borrower Commitments hereunder shall have been terminated; and
(xiv) any other circumstance or happening whatsoever, whether or not similar to any of any draw under a Facilitythe foregoing.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Facility (Shotspotter, Inc)
Reimbursement Obligations. 2.4.1. Borrowers shall reimburse each Agent and (aduring any period that an Event of Default exists) Each Borrower agrees to pay to the Issuer the amount of each Lender for all Reimbursement Obligationslegal, interest accounting, appraisal, consulting and other amounts payable to the Issuer under fees and expenses incurred by any Agent or any Lender in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective (i) the negotiation and preparation of any claimof the Loan Documents, set-offany amendment or modification thereto, defense any waiver of any Default or other right which the BorrowerEvent of Default thereunder, the Company or any Subsidiary may have at restructuring or forbearance with respect thereto; (ii) the administration of the Loan Documents and the transactions contemplated thereby; (iii) action taken to perfect or maintain the perfection or priority of any time of Administrative Agent’s Liens with respect to any of the Collateral; (iv) any inspection of or audits conducted with respect to any Borrower’s books and records or any of the Collateral subject to the limitations on reimbursements set forth in Section 2.2.4 hereof; (v) any effort to verify, protect, appraise, preserve, or restore any of the Collateral (subject to the limitations on reimbursements for appraisals of Inventory set forth in Section 2.2.4 hereof) or to collect, sell, liquidate or otherwise dispose of or realize upon any of the Collateral; (vi) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or against the Issuer either Agent, any Lender, any Obligor or any other PersonPerson (but not in respect of any suit or proceeding instituted by any Lender against any other Lender or any Agent)) in any way arising out of or relating to any of the Collateral (or the validity, under all circumstances, including without limitationperfection or priority of any of Administrative Agent’s Liens thereon), any of the following circumstances:
Loan Documents or the validity, allowance or amount of any of the Obligations; (ivii) the protection or enforcement or any rights or remedies of any Agent or any Lender in any Insolvency Proceeding; and (viii) any lack other action taken by any Agent or any Lender to enforce any of validity the rights or enforceability remedies of such Agent or such Lender against any Obligor or any Account Debtors to enforce collection of any of the Obligations or payments with respect to any of the Collateral. All amounts chargeable to Borrowers under this Section 2.4 shall constitute Obligations that are secured by all of the Collateral and shall be payable on demand to Administrative Agent. Borrowers shall also reimburse Administrative Agent for expenses incurred by Administrative Agent in its administration of any of the Collateral to the extent and in the manner provided in Section 7 hereof, in the Security Agreement or in any of the other Loan Documents;
(ii) the existence of any claim. The foregoing shall be in addition to, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may and shall not be acting)construed to limit, any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms provision of any of the Loan Documents; or
(v) Documents regarding the occurrence reimbursement by Borrowers of costs, expenses or liabilities suffered or incurred by any Default Agent or Unmatured Defaultany Lender.
2.4.2. If at any time Administrative Agent shall agree to indemnify any Lender or any Affiliate or a Lender (bincluding Bank) against losses or damages that such Person may suffer or incur in its dealings or transactions with Borrowers, or shall guarantee any liability or obligation of Borrowers to such Person, or otherwise shall provide assurances of Borrowers’ payment or performance under any agreement with such Person, including indemnities, guaranties or other assurances of payment or performance given by Administrative Agent with respect to Banking Relationship Debt and Letters of Credit, then the Contingent Obligation of Administrative Agent providing any such indemnity, guaranty or other assurance of payment or performance, together with any payment made or liability incurred by Administrative Agent in connection therewith, shall constitute Obligations that are secured by the Collateral and Borrowers shall repay, on demand, any amount so paid or any liability incurred by Administrative Agent in connection with any such indemnity, guaranty or assurance, except that repayment with respect to any LC Support shall be due on the Reimbursement Date as provided in Section 1.3.1(iii). Nothing herein shall be construed to impose upon Administrative Agent any obligation to provide any such indemnity, guaranty or assurance except to the extent provided in Section 1.3 hereof. The Issuer foregoing agreement of Borrowers shall promptly notify apply whether or not such indemnity, guaranty or assurance is in writing or oral, and shall be in addition to any of the applicable Borrower provisions of any draw under a Facilitythe Loan Documents regarding reimbursement by Borrowers of costs, expenses or liabilities suffered or incurred by Administrative Agent.
Appears in 1 contract
Reimbursement Obligations. (a) Each Borrower agrees to pay 3.3.1. Borrowers shall reimburse the applicable Agent or, to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitationextent set forth below, any Collateral Agent (and during any period that an Event of the following circumstancesDefault exists, each Lender) for:
(i) all reasonable legal, accounting, appraisal, consulting and other fees and out-of-pocket expenses incurred by such Agent (and during any lack period that an Event of validity Default exists, any Lender) in connection with (a) the negotiation and preparation of any of the Credit Documents or enforceability any amendment or modification thereto; (b) the administration of this Agreement the Credit Documents and the transactions contemplated thereby, subject to Section 3.2.2 hereof; and (c) any inspection of or audits conducted with respect to such Borrower’s or any Canadian Subsidiary Guarantor’s, as applicable, books and records or any of the other Loan Documents;Collateral, subject to Section 3.2.2 hereof; and
(ii) all legal, accounting, appraisal, consulting and other fees and out-of-pocket expenses incurred by the existence applicable Agent (and during any period that an Event of Default exists, any Lender) in connection with: (a) any effort to verify, protect, appraise (subject to Section 3.2.2 hereof), preserve, or restore any of the Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any of the Collateral; (b) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or against such Agent, any applicable Collateral Agent, any applicable Lender, any applicable Borrower or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, perfection or priority of such Agent’s Liens thereon), any of the Credit Documents or the validity, allowance or amount of any claimof the Obligations (unless such litigation is between Borrowers and the Canadian Subsidiary Guarantors and/or Agents and/or Collateral Agents and/or Lenders and a court having jurisdiction renders a final, setoffnon-appealable judgment against Agents and/or Collateral Agents and/or Lenders, defense in which event Borrowers shall not be liable for, as applicable, Agents’, Collateral Agents’ or Lenders’ costs of such litigation); (c) the protection or enforcement of any rights or remedies of such Agent, any applicable Collateral Agent or any applicable Lender in any Insolvency Proceeding; (d) any other right which action taken by such Agent, any applicable Collateral Agent or any applicable Lender to enforce any of the rights or remedies of such Agent, such Collateral Agent or such Lender against any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving Account Debtors to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance enforce collection of any of the terms Obligations or payments with respect to any of the Collateral; (e) any waiver of any Default or Event of Default under any of the Credit Documents, or any restructuring or forbearance with respect thereto; and (f) any action taken to perfect or maintain the perfection or priority of the applicable Agent’s Liens with respect to any of the Collateral. All amounts chargeable to Borrowers under this Section 3.3 shall constitute Obligations that are secured by all of the applicable Collateral and shall be payable on demand to the applicable Agent. Borrowers also shall reimburse the applicable Agent for expenses incurred by such Agent in its administration of any of the Loan Collateral to the extent and in the manner provided in Section 8 hereof or in any of the other Credit Documents; or. The foregoing shall be in addition to, and shall not be construed to limit, any other provision of any of the Credit Documents regarding the reimbursement by Obligors of costs, expenses or liabilities suffered or incurred by any Agent, any Collateral Agent or any Lender.
3.3.2. If at any time, in connection with the administration of the Credit Documents or the normal day-to-day operations and maintenance of the Loans, Administrative Agent or (with the consent of Administrative Agent) MLPFSI or any Lender shall agree to indemnify any Person (including Bank of America or Bank of America-Canada Branch) against losses or damages that such Person may suffer or incur in its dealings or transactions with Borrowers and any Canadian Subsidiary Guarantor, or shall guarantee or provide assurance of payment or performance of any liability or obligation of Borrowers or any Canadian Subsidiary Guarantor to such Person, including with respect to Bank Product Debt, then the Contingent Obligation of any Agent or any Lender providing any such indemnity, guaranty or other assurance of payment or performance, together with any payment made or liability incurred by any Agent or any Lender in connection therewith, shall constitute Obligations that are secured by the Collateral and Borrowers shall repay, on demand, any amount so paid or any liability incurred by any Agent or any Lender in connection with any such indemnity, guaranty or assurance, except that repayment pursuant to Section 2.3.3(i) shall be due as set forth in that Section. Nothing herein shall be construed to impose upon any Agent or any Lender any obligation to provide any such indemnity, guaranty or assurance except to the extent provided in Section 2.3 hereof. Administrative Agent shall use reasonable efforts to notify Borrower Agent of such indemnity, guaranty or assurance to the extent that such indemnity, guaranty or assurance has not otherwise been expressly requested by Borrowers.
3.3.3. In the event that any financial statement or Borrowing Base Certificate delivered pursuant to Section 10.1.3 or 8.4 is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected would have led to a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then
(vi) Borrowers shall immediately deliver to Administrative Agent correct financial statements and a correct Borrowing Base Certificate for such Applicable Period, (ii) the occurrence of Applicable Margin shall be determined by reference to the correct financial statements and corrected Borrowing Base Certificate (but in no event shall Lenders owe any Default or Unmatured Default.
amounts to Borrowers), and (biii) The Issuer Borrowers shall promptly notify immediately pay to the applicable Borrower Agent the additional interest owing as a result of any draw under a Facilitysuch increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the applicable Agent in accordance with the terms hereof. This
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Reimbursement Obligations. (a) Each Borrower Notwithstanding any provisions to the contrary in any Reimbursement Agreement:
(i) Astec shall reimburse the Issuer for drawings under a Facility Letter of Credit issued by it no later than the earlier of (1) the time specified in such Reimbursement Agreement and (2) three (3) Business Days after the payment by the Issuer of such drawing; and
(ii) any Reimbursement Obligation with respect to any Facility Letter of Credit shall bear interest from the date of the relevant drawing under the pertinent Facility Letter of Credit at the higher of the interest rate (1) specified in the applicable Reimbursement Agreement with respect to such amount, and (2) for past due Floating Rate Loans calculated in accordance with Section 2.2.8 above.
(b) Astec agrees to pay to the Issuer Agent the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer Agent under or in connection with any such Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company Astec or any Subsidiary or Affiliate of Astec may have at any time against the Issuer or any other Person, under all circumstances, including including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower Astec or any Subsidiary or Affiliate of Astec may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any the Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower Astec, or any Subsidiary or Affiliate of Astec and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respectrespect (except to the extent any such invalidity or insufficiency is found in a final judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Agent);
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; orand
(v) the occurrence of any Default or Unmatured Default.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
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Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer Agent, without duplication, the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer Agent under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company any Borrower or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any the Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respectrespect (provided that, if all Reimbursement Obligations have been paid in full and there is no Default or Event of Default, the Issuer shall assign, without recourse, representation or warranty, to the Borrower any claim, if any, it may have against any person that has drawn on a Facility Letter of Credit pursuant to a draft, certificate or other document which was forged, fraudulent, invalid or insufficient in any respect or any statement therein being true or inaccurate in any respect pursuant to such Facility Letter of Credit);
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or;
(v) the occurrence of any Default or Unmatured Event of Default.
(b) The Issuer shall promptly notify the applicable relevant Borrower of any draw under a Facility
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Samples: Credit Agreement (Lason Inc)
Reimbursement Obligations. 3.3.1. Borrowers shall reimburse the applicable Agent (aand during any period that an Event of Default exists, each Lender) Each Borrower agrees to pay to the Issuer the amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when due, irrespective of any claim, set-off, defense or other right which the Borrower, the Company or any Subsidiary may have at any time against the Issuer or any other Person, under all circumstances, including without limitation, any of the following circumstancesfor:
(i) all reasonable legal, accounting, appraisal, consulting and other fees and out-of-pocket expenses incurred by such Agent (and during any lack period that an Event of validity Default exists, any Lender) in connection with (a) the negotiation and preparation of any of the Credit Documents or enforceability any amendment or modification thereto; (b) the administration of this Agreement the Credit Documents and the transactions contemplated thereby, subject to Section 3.2.2 hereof; and (c) any inspection of or audits conducted with respect to such Borrower’s or any Canadian Subsidiary Guarantor’s, as applicable, books and records or any of the other Loan Documents;Collateral, subject to Section 3.2.2 hereof; and
(ii) all legal, accounting, appraisal, consulting and other fees and out-of-pocket expenses incurred by the existence applicable Agent (and during any period that an Event of Default exists, any Lender) in connection with: (a) any effort to verify, protect, appraise (subject to Section 3.2.2 hereof), preserve, or restore any of the Collateral or to collect, sell, liquidate or otherwise dispose of or realize upon any of the Collateral; (b) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or against such Agent, any applicable Lender, any applicable Borrower or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, perfection or priority of such Agent’s Liens thereon), any of the Credit Documents or the validity, allowance or amount of any claimof the Obligations (unless such litigation is between Borrowers and the Canadian Subsidiary Guarantors and/or Agents and/or Lenders and a court having jurisdiction renders a final, setoffnon appealable judgment against Agents and/or Lenders, defense in which event Borrowers shall not be liable for, as applicable, Agents’ or Lenders’ costs of such litigation); (c) the protection or enforcement of any rights or remedies of such Agent or any applicable Lender in any Insolvency Proceeding; (d) any other right which action taken by such Agent or any applicable Lender to enforce any of the rights or remedies of such Agent or such Lender against any Borrower or any Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving Account Debtors to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance enforce collection of any of the terms Obligations or payments with respect to any of the Collateral; (e) any waiver of any Default or Event of Default under any of the Credit Documents, or any restructuring or forbearance with respect thereto; and (f) any action taken to perfect or maintain the perfection or priority of the applicable Agent’s Liens with respect to any of the Collateral. All amounts chargeable to Borrowers under this Section 3.3 shall constitute Obligations that are secured by all of the applicable Collateral and shall be payable on demand to the applicable Agent. Borrowers also shall reimburse the applicable Agent for expenses incurred by such Agent in its administration of any of the Loan Collateral to the extent and in the manner provided in Section 8 hereof or in any of the other Credit Documents; or. The foregoing shall be in addition to, and shall not be construed to limit, any other provision of any of the Credit Documents regarding the reimbursement by Obligors of costs, expenses or liabilities suffered or incurred by any Agent or any Lender.
3.3.2. If at any time, in connection with the administration of the Credit Documents or the normal day-to-day operations and maintenance of the Loans, Administrative Agent or (with the consent of Administrative Agent) BAS or any Lender shall agree to indemnify any Person (including Bank of America or Bank of America-Canada Branch) against losses or damages that such Person may suffer or incur in its dealings or transactions with Borrowers and any Canadian Subsidiary Guarantor, or shall guarantee or provide assurance of payment or performance of any liability or obligation of Borrowers or any Canadian Subsidiary Guarantor to such Person, including with respect to Bank Product Debt, then the Contingent Obligation of any Agent or any Lender providing any such indemnity, guaranty or other assurance of payment or performance, together with any payment made or liability incurred by any Agent or any Lender in connection therewith, shall constitute Obligations that are secured by the Collateral and Borrowers shall repay, on demand, any amount so paid or any liability incurred by any Agent or any Lender in connection with any such indemnity, guaranty or assurance, except that repayment pursuant to Section 2.3.3
(vi) shall be due as set forth in that Section. Nothing herein shall be construed to impose upon any Agent or any Lender any obligation to provide any such indemnity, guaranty or assurance except to the extent provided in Section 2.3 hereof. Administrative Agent shall use reasonable efforts to notify Borrower Agent of such indemnity, guaranty or assurance to the extent that such indemnity, guaranty or assurance has not otherwise been expressly requested by Borrowers.
3.3.3. In the event that any financial statement or Borrowing Base Certificate delivered pursuant to Section 10.1.3 or 8.4 is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected would have led to a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) Borrowers shall immediately deliver to Administrative Agent correct financial statements and a correct Borrowing Base Certificate for such Applicable Period, (ii) the occurrence Applicable Margin shall be determined by reference to the correct financial statements and . corrected Borrowing Base Certificate (but in no event shall Lenders owe any amounts to Borrowers), and (iii) Borrowers shall immediately pay to the applicable Agent the additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the applicable Agent in accordance with the terms hereof. This Section 3.3.3 shall not limit the rights of any Default or Unmatured DefaultAgent and Lenders hereunder.
(b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
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