Common use of Alternative Letters of Credit Clause in Contracts

Alternative Letters of Credit. So long as no Default or Unmatured Default shall have occurred and is continuing, the Borrower shall have the right to cash collateralize any Facility Letter of Credit Obligation with respect to any Facility Letter of Credit in accordance with this Section 4.12. In order to designate a Facility Letter of Credit as an Alternative Letter of Credit, the Borrower shall give the Administrative Agent and the applicable Issuing Bank at least five Business Days’ (or such shorter period as shall be acceptable to the Administrative Agent and such Issuing Bank in their sole discretion) prior written notice of its election to so designate and deposit cash collateral in a deposit account with or designate account balances at the Administrative Agent or the applicable Issuing Bank as collateral in an aggregate amount equal to the undrawn face amount of such Facility Letter of Credit. So long as such cash collateral remains in place in an amount at least equal to the undrawn face amount of such Facility Letter of Credit at such time, such Facility Letter of Credit shall be an “Alternative Letter of Credit” hereunder; provided that, at the Borrower’s election, upon at least five Business Days’ prior written notice to the Administrative Agent (or such shorter period as shall be acceptable to the Administrative Agent and, if applicable, such Issuing Bank in their sole discretion), the cash collateral for such Alternative Letter of Credit shall be released and, together with any interest accrued thereon, remitted back to the Borrower, at which time such Facility Letter of Credit shall cease to be “Alternative Letter of Credit” hereunder. For the avoidance of doubt, the Borrower may cause a Facility Letter of Credit that is fully cash collateralized pursuant to Section 4.10 to be designated an Alternative Letter of Credit in accordance with this Section 4.12. Any interest on any such accounts collateralizing an Alternative Letter of Credit shall be for the account of the Borrower.

Alternative Letters of Credit. So long (a) Subject to the terms and conditions of this Agreement, the Alternative Issuing Lender hereby agrees to issue one or more Alternative Letters of Credit up to an aggregate face amount equal to the Alternative Letter of Credit Commitment; provided, however, that, except as described in the last sentence of Section 4.3, the Alternative Issuing Lender shall not issue any Alternative Letter of Credit unless the conditions precedent to the issuance thereof set forth in Section 4.3 have been satisfied. Each Alternative Letter of Credit shall (1) be denominated in Dollars, and (2) expire no later than the earlier to occur of (A) the date thirty (30) days prior to the Maturity Date, and (B) three hundred sixty (360) days after its date of issuance (but may contain provisions for automatic renewal provided that no Default exists on the renewal date or Unmatured Default would be caused by such renewal and provided no such renewal shall have occurred extend beyond the date thirty (30) days prior to the Maturity Date). Each Alternative Letter of Credit shall be subject to the Uniform Customs and, to the extent not inconsistent therewith, the laws of the State of New York. The Alternative Issuing Lender shall not at any time be obligated to issue, or cause to be issued, any Alternative Letter of Credit if such issuance would conflict with, or cause the Alternative Issuing Lender to exceed any limits imposed by, any Applicable Law. (b) The Borrower may from time to time request that the Alternative Issuing Lender issue an Alternative Letter of Credit. The Borrower shall execute and deliver to the Administrative Agent and the Alternative Issuing Lender a Request for Issuance of Letter of Credit for each Alternative Letter of Credit to be issued by the Alternative Issuing Lender, not later than 1:00 p.m. (Atlanta, Georgia time) on the third (3rd) Business Day preceding the date on which the requested Alternative Letter of Credit is continuingto be issued, or such shorter notice as may be acceptable to the Alternative Issuing Lender and the Administrative Agent. Upon receipt of any such Request for Issuance of Letter of Credit, subject to satisfaction of all conditions precedent thereto as set forth in Section 4.3 or waiver of such conditions pursuant to the last sentence of Section 4.3, the Alternative Issuing Lender shall process such Request for Issuance of Letter of Credit and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue the Alternative Letter of Credit requested thereby. The Alternative Issuing Lender shall furnish a copy of such Alternative Letter of Credit to the Borrower and the Administrative Agent following the issuance thereof. In addition to the fees payable pursuant to Section 2.4(c)(ii), the Borrower shall have pay or reimburse the right to cash collateralize any Facility Alternative Issuing Lender for normal and customary costs and expenses incurred by the Alternative Issuing Lender in issuing, effecting payment under, amending or otherwise administering the Alternative Letters of Credit. (c) Immediately upon the issuance by the Alternative Issuing Lender of an Alternative Letter of Credit Obligation and in accordance with the terms and conditions of this Agreement, the Alternative Issuing Lender shall be deemed to have sold and transferred to each Lender, and each Lender shall be deemed irrevocably and unconditionally to have purchased and received from the Alternative Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Lender’s Commitment Ratio, in such Alternative Letter of Credit and the obligations of the Borrower with respect thereto (including, without limitation, all Alternative Letter of Credit Obligations with respect thereto). The Alternative Issuing Lender shall promptly notify the Administrative Agent of any draw under an Alternative Letter of Credit. At such time as the Administrative Agent shall be notified by the Alternative Issuing Lender that the beneficiary under any Alternative Letter of Credit has drawn on the same, the Administrative Agent shall promptly notify the Borrower, by telephone or telecopy, of the amount of the draw. (d) The Borrower hereby agrees to immediately reimburse the Alternative Issuing Lender for amounts paid by the Alternative Issuing Lender in respect of draws under each Alternative Letter of Credit and, if such reimbursement is not immediate, in any event not later than the tenth (10th) Business Day following payment under such Alternative Letter of Credit. In order to facilitate such repayment, the Borrower hereby irrevocably requests the Lenders, and the Lenders hereby severally agree, on the terms and conditions of this Agreement (other than as provided in Article 2 with respect to the amounts of, the timing of requests for, and the repayment of Advances hereunder), with respect to any Facility Letter of Credit in accordance with this Section 4.12. In order to designate a Facility Letter of Credit as drawing under an Alternative Letter of Credit, to make a Prime Rate Advance on each day on which a draw is made under any Alternative Letter of Credit and in the Borrower amount of such draw, and to pay the proceeds of such Advance directly to the Alternative Issuing Lender to reimburse the Alternative Issuing Lender for the amount paid by it upon such draw, not later than the tenth (10th) Business Day thereafter. Each Lender shall give the Administrative Agent and the applicable Issuing Bank at least five Business Days’ (or pay its share of such shorter period as shall be acceptable Prime Rate Advance by paying its portion of such Advance to the Administrative Agent in accordance with Section 2.2(e) and such its Commitment Ratio, without reduction for any set-off or counterclaim of any nature whatsoever. The disbursement of funds in connection with a draw under an Alternative Letter of Credit pursuant to this Section hereunder shall be subject to the terms and conditions of Section 2.2(e). The obligation of each Lender to make payments to the Administrative Agent, for the account of the Alternative Issuing Bank Lender, in their sole discretion) prior written notice accordance with this Section 2.17 shall be absolute and unconditional and no Lender shall be relieved of its election obligations to make such payments by reason of noncompliance by any other Person with the terms of the Alternative Letter of Credit or for any other reason (other than the gross negligence or willful misconduct of the Alternative Issuing Lender in paying such Alternative Letter of Credit, as determined by a final non-appealable judgment of a court of competent jurisdiction). The Administrative Agent shall promptly remit to the Alternative Issuing Lender the amounts so designate and deposit cash collateral received from the other Lenders. Any overdue amounts payable by the Lenders to the Alternative Issuing Lender in respect of a deposit account with or designate account balances draw under any Alternative Letter of Credit shall bear interest, payable on demand, (x) for the first two (2) Business Days, at the Federal Funds Rate, and (y) thereafter, at the Prime Rate. (e) The Borrower agrees that each Advance by the Lenders to reimburse the Alternative Issuing Lender for draws under any Alternative Letter of Credit, shall, for all purposes hereunder, unless and until converted into a Eurodollar Advance pursuant to Section 2.2(b)(ii), be deemed to be a Prime Rate Advance under the Commitment and shall be payable and bear interest in accordance with all other Prime Rate Advances of Revolving Loans. (f) The Borrower agrees that any action taken or omitted to be taken by the Alternative Issuing Lender in connection with any Alternative Letter of Credit, except for such actions or omissions as shall constitute gross negligence or willful misconduct on the part of such Alternative Issuing Lender as determined by a final non-appealable judgment of a court of competent jurisdiction, shall be binding on the Borrower as between the Borrower and the Alternative Issuing Lender, and shall not result in any liability of the Alternative Issuing Lender to the Borrower. The obligation of the Borrower to reimburse the Alternative Issuing Lender for a drawing under any Alternative Letter of Credit or the Lenders for Advances made by them to the Alternative Issuing Lender on account of draws made under the Alternative Letters of Credit shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances whatsoever, including, without limitation, the following circumstances: (i) Any lack of validity or enforceability of any Loan Document; (ii) Any amendment or waiver of or consent to any departure from any or all of the Loan Documents; (iii) Any improper use which may be made of any Alternative Letter of Credit or any improper acts or omissions of any beneficiary or transferee of any Alternative Letter of Credit in connection therewith; (iv) The existence of any claim, set-off, defense or any right which the Borrower may have at any time against any beneficiary or any transferee of any Alternative Letter of Credit (or Persons for whom any such beneficiary or any such transferee may be acting), any Lender or any other Person, whether in connection with any Alternative Letter of Credit, any transaction contemplated by any Alternative Letter of Credit, this Agreement, or any other Loan Document, or any unrelated transaction; (v) Any statement or any other documents presented under any Alternative Letter of Credit proving to be insufficient, forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect whatsoever; (vi) The insolvency of any Person issuing any documents in connection with any Alternative Letter of Credit; (vii) Any breach of any agreement between the Borrower and any beneficiary or transferee of any Alternative Letter of Credit; (viii) Any irregularity in the transaction with respect to which any Alternative Letter of Credit is issued, including any fraud by the beneficiary or any transferee of such Alternative Letter of Credit; (ix) Any errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, wireless or otherwise, whether or not they are in code; (x) Any act, error, neglect or default, omission, insolvency or failure of business of any of the correspondents of the Alternative Issuing Lender; (xi) Any other circumstances arising from causes beyond the control of the Alternative Issuing Lender; (xii) Payment by the Alternative Issuing Lender under any Alternative Letter of Credit against presentation of a sight draft or a certificate which does not comply with the terms of such Alternative Letter of Credit, provided that such payment shall not have constituted gross negligence or willful misconduct of the Alternative Issuing Lender as determined by a final non-appealable judgment of a court of competent jurisdiction; and (xiii) Any other circumstance or happening whatsoever, whether or not similar to any of the foregoing. (g) The Borrower will indemnify and hold harmless each Indemnified Person from and against any and all claims, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including reasonable attorneys’ fees) which may be imposed on, incurred by or asserted against such Indemnified Person in any way relating to or arising out of the issuance of a Alternative Letter of Credit, except that the Borrower shall not be liable to an Indemnified Person for any portion of such claims, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Indemnified Person as determined by a final non-appealable judgment of a court of competent jurisdiction. This Section 2.17(g) shall survive termination of this Agreement. (h) The Administrative Agent or shall notify the applicable Alternative Issuing Bank as collateral in an aggregate amount equal to the undrawn face amount Lender upon Administrative Agent’s receipt of such Facility any Request for Issuance of Letter of Credit. So long as such cash collateral remains in place in an amount at least equal Subject to the undrawn face amount of terms and conditions hereof, the Alternative Issuing Lender may, in its sole discretion, determine whether to issue such Facility requested Letter of Credit at pursuant to this Section 2.17 or require that such timerequested Letter of Credit be issued pursuant to Section 2.15; provided, however, if the Letter of Credit Availability is sufficient to issue the requested Letter of Credit but insufficient to issue either a Syndicated Letter of Credit or an Alternative Letter of Credit, then (x) the Syndicated Issuing Lender and the Alternative Issuing Lender shall immediately transfer or assign Letters of Credit between the Alternative Letter of Credit Commitment and the Syndicated Letter of Credit Commitment so that availability for the requested Letter of Credit exists within a single facility, and (y) such Facility requested Letter of Credit shall be an “issued by the Issuing Lender with such then sufficient Letter of Credit Availability, subject to the satisfaction of the conditions contained in Section 4.3. Notwithstanding anything to the contrary contained herein, and subject to satisfaction of the conditions contained in paragraphs (c) and (d) of Section 4.3, the Syndicated Issuing Lender and the Alternative Issuing Lender may from time to time, in their sole discretion, transfer or assign Letters of Credit between the Alternative Letter of Credit Commitment and the Syndicated Letter of Credit Commitment, as the case may be, without the consent of the Borrower or the Lenders. (i) So long as the conditions precedent in Section 4.2 have been satisfied with respect to a requested Advance, the Syndicated Issuing Lender and the Alternative Issuing Lender shall be required to transfer or assign Letters of Credit from the Syndicated Letter of Credit Commitment to the Alternative Letter of Credit Commitment at the time any such Advance is requested if such transfer and/or assignment is needed to provide sufficient Availability for such Advance. (j) Each Lender shall be responsible (to the extent the Alternative Issuing Lender is not reimbursed by the Borrower) for its pro rata share (based on such Lender’s Commitment Ratio) of any and all reasonable out-of-pocket costs, expenses (including reasonable legal fees) and disbursements which may be incurred or made by the Alternative Issuing Lender in connection with the collection of any amounts due under, the administration of, or the presentation or enforcement of any rights conferred by any Alternative Letter of Credit” hereunder; provided that, at the Borrower’s electionor any guarantor’s obligations to reimburse draws thereunder or otherwise. In the event the Borrower shall fail to pay such expenses of the Alternative Issuing Lender within fifteen (15) days of demand for payment by the Alternative Issuing Lender, upon at least five Business Days’ prior written each Lender shall thereupon pay to the Alternative Issuing Lender its pro rata share (based on such Lender’s Commitment Ratio) of such expenses within ten (10) days from the date of the Alternative Issuing Lender’s notice to the Administrative Agent (or such shorter period as shall be acceptable to the Administrative Agent and, if applicable, such Issuing Bank in their sole discretion), the cash collateral for such Alternative Letter of Credit shall be released and, together with any interest accrued thereon, remitted back to the Borrower, at which time such Facility Letter of Credit shall cease to be “Alternative Letter of Credit” hereunder. For the avoidance of doubt, the Borrower may cause a Facility Letter of Credit that is fully cash collateralized pursuant to Section 4.10 to be designated an Alternative Letter of Credit in accordance with this Section 4.12. Any interest on any such accounts collateralizing an Alternative Letter of Credit shall be for the account Lenders of the Borrower’s failure to pay; provided, however, that if the Borrower shall thereafter pay such expenses, the Alternative Issuing Lender will repay to each Lender the amounts received from such Lender hereunder. (g) Amendment to Section 7.2. Section 7.2 of the Credit Agreement, Annual Financial Statements and Information; Certificate of No Default, is hereby amended and modified by deleting Section 7.2 in its entirety and by substituting the following in lieu thereof:

Alternative Letters of Credit. So long as no Default or Unmatured Default shall have occurred and is continuing, the Borrower shall have the right to cash collateralize any Facility Letter of Credit Obligation with respect to any Facility Letter of Credit in accordance with this Section 4.12. In order to designate a Facility Letter of Credit as an Alternative Letter of Credit, the Borrower shall give the Administrative Agent and the applicable Issuing Bank at least five Business Days’ (or such shorter period as shall be acceptable to the Administrative Agent and such Issuing Bank in their sole discretion) prior written notice of its election to so designate and deposit cash collateral in a deposit account with or designate account balances at the Administrative Agent or the applicable Issuing Bank as collateral in an aggregate amount equal to the undrawn face amount of such Facility Letter of Credit. So long as such cash collateral remains in place in an amount at least equal to the undrawn face amount of such Facility Letter of Credit at such time, such Facility Letter of Credit shall be an “Alternative Letter of Credit” hereunder; provided that, at the Borrower’s election, upon at least five Business Days’ prior written notice to the Administrative Agent (or such shorter period as or shall be acceptable to the Administrative Agent and, if applicable, such Issuing Bank in their sole discretion), the cash collateral for such Alternative Letter of Credit shall be released and, together with any interest accrued thereon, remitted back to the Borrower, at which time such Facility Letter of Credit shall cease to be “Alternative Letter of Credit” hereunder. For the avoidance of doubt, the Borrower may cause a Facility Letter of Credit that is fully cash collateralized pursuant to Section 4.10 to be designated an Alternative Letter of Credit in accordance with this Section 4.12. Any interest on any such accounts collateralizing an Alternative Letter of Credit shall be for the account of the Borrower.