Common use of Conditions Precedent to Each Letter of Credit Clause in Contracts

Conditions Precedent to Each Letter of Credit. The obligation of the Issuing Bank to issue each Letter of Credit (excluding the automatic renewal of any previously issued Letter of Credit) hereunder is subject to the fulfillment of each of the following conditions immediately prior to or contemporaneously with the issuance of such Letter of Credit: (a) All of the representations and warranties of the Borrower under this Agreement and the other Loan Documents, which, pursuant to Section 4.2, are made at and as of the time of the issuance of such Letter of Credit, shall be true and correct at such time, both before and after giving effect to the issuance of such Letter of Credit; (b) The incumbency of the Authorized Signatories of the Borrower shall be as stated in the certificate of incumbency contained in the certificate of the Borrower delivered pursuant to Section 3.1(a) or as subsequently modified and reflected in a certificate of incumbency delivered to the Administrative Agent; and (c) There shall not exist on the date of issuance of such Letter of Credit, and after giving effect thereto, a Default or an Event of Default. The Borrower hereby agrees that the delivery of any Request for Issuance of Letter of Credit hereunder shall be deemed to be the certification of the applicable Authorized Signatory of the Borrower, on behalf of the Borrower, that there does not exist, on the date of the issuance of the Letter of Credit and after giving effect thereto, a Default or an Event of Default and that all of the other conditions set forth in this Section 3.3 have been satisfied.

Conditions Precedent to Each Letter of Credit. The obligation of the Issuing Bank to issue each Letter of Credit (excluding the automatic renewal of any previously issued Letter of Credit) hereunder is subject to the fulfillment of each of the following conditions immediately prior to or contemporaneously with the issuance of such Letter of Credit: (a) All of the representations and warranties of the Borrower Parties under this Agreement and the other Loan Documents, which, pursuant to Section 4.25.2, are made at and as of the time of the issuance of such Letter of Credit, shall be true and correct at such time, both before and after giving effect to the issuance of such Letter of Credit; (b) The incumbency of the Authorized Signatories of the Borrower shall be as stated in the certificate of incumbency contained in the certificate of the Borrower delivered pursuant to Section 3.1(a4.1(a) or as subsequently modified and reflected in a certificate of incumbency delivered to the Administrative Agent; and (c) There shall not exist on the date of issuance of such Letter of Credit, and after giving effect thereto, a Default or an Event of Default. The Borrower hereby agrees that the delivery of any Request for Issuance of Letter of Credit hereunder shall be deemed to be the certification of the applicable Authorized Signatory of the Borrower, on behalf of the Borrower, that there does not exist, on the date of the issuance of the Letter of Credit and after giving effect thereto, a Default or an Event of Default and that all of the other conditions set forth in this Section 3.3 4.3 have been satisfied.

Conditions Precedent to Each Letter of Credit. The obligation of the Issuing Bank to issue each Letter of Credit (excluding the automatic renewal of any previously issued Letter of Credit) hereunder is subject to the fulfillment of each of the following conditions immediately prior to or contemporaneously with the issuance of such Letter of Credit: (a) All of the representations and warranties of the Borrower Co-Borrowers under this Agreement and the other Loan DocumentsAgreement, which, pursuant to Section 4.2SECTION 5.26 hereof, are made at and as of the time of the issuance of such Letter of Credit, shall be true and correct at such time, both before and after giving effect to the issuance of the Letter of Credit, (x) as stated, as to representations and warranties which contain express materiality limitations or qualifications, and (y) in all material respects, as to all other representations and warranties, and the Agent shall have received a certificate (which may be a request for issuance of Letter of Credit) to that effect signed by the Authorized Representative and dated the date of the issuance of such Letter of Credit; (b) The incumbency of the Authorized Signatories of the Borrower Representatives shall be as stated in the certificate of incumbency contained in the certificate of the Borrower Co-Borrowers delivered pursuant to Section 3.1(aSECTION 4.1(a) or as subsequently modified and reflected in a certificate of incumbency delivered to the Administrative Agent; andAgent and the Banks; (c) There shall not exist on the date of issuance of such Letter of Credit, and after giving effect thereto, a Default Default, or an Event of Default. Default hereunder; and (d) The Borrower hereby agrees that Agent and the delivery of any Issuing Bank shall have received a duly executed Request for Issuance of Letter of Credit hereunder shall be deemed to be the certification of the applicable Authorized Signatory of the from such Co-Borrower, on behalf of the Borrower, that there does not exist, on the date of the issuance of the Letter of Credit and after giving effect thereto, a Default or an Event of Default and that all of the other conditions set forth in this Section 3.3 have been satisfied.; and

Conditions Precedent to Each Letter of Credit. The obligation of the Issuing Bank to issue each Letter of Credit (excluding including the automatic renewal of any previously issued initial Letter of Credit) hereunder is subject to the fulfillment of each of the following conditions immediately prior to or contemporaneously with the issuance of such Letter of Credit: (a) All of the representations and warranties of the Borrower Parties under this Agreement and the other Loan Documents, which, pursuant to Section 4.25.3, are made at and as of the time of the issuance of such Letter of Credit, shall be true and correct in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects and unless such representation or warranty is made as of an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date) at such time, both before and after giving effect to the issuance of such Letter of Credit; (b) The incumbency of the Authorized Signatories of the Borrower shall Since December 26, 2010, there has occurred no event which has had or could reasonably be as stated in the certificate of incumbency contained in the certificate of the Borrower delivered pursuant expected to Section 3.1(a) or as subsequently modified and reflected in have a certificate of incumbency delivered to the Administrative Agent; andMaterially Adverse Effect; (c) There shall not exist on the date of issuance of such Letter of Credit, and after giving effect thereto, a Default or an Event of Default; (d) If, on or after the Agreement Date until the date of the first field exam by the Administrative Agent after the Agreement Date, the Borrowers shall request the issuance of a Letter of Credit which, together with all other Advances made and Letters of Credit issued before such requested Letter of Credit, is in an aggregate amount in excess of $10,000,000, the Borrowers shall provide the Administrative Agent written notice at least fifteen (15) days prior to the date of the requested Letter of Credit and the opportunity to conduct a field exam of the Borrowers’ Accounts during such fifteen (15) day period; (e) If either (i) Availability is less than the Availability Trigger Amount during any Testing Trigger Period or (ii) since the date of the most recent Advance or issuance of Letter of Credit (including the initial Advance and initial issuance of Letter of Credit, as applicable), the Transaction Conditions (Undrawn) are relied upon at any time during the period of time beginning with the first day of the fiscal quarter ended immediately preceding the requested date of issuance of a new Letter of Credit to and including such requested date of issuance, by any Borrower Party to permit a transaction or event which would otherwise have not been permitted under Sections 8.1, 8.2, 8.4, 8.5, 8.7 or 8.13 of this Agreement, then a certificate of the Borrower Parties certifying as to compliance, after giving effect to such requested Letter of Credit, with the Fixed Charge Coverage Ratio, including arithmetical calculations required to determine the same, as set forth in Section 8.8 (notwithstanding that compliance with the Financial Covenants may not, as of such date, be required pursuant to the terms hereof) shall be delivered to the Administrative Agent with the applicable Request for Issuance of Letter of Credit; (f) The most recent Borrowing Base Certificate which shall have been delivered to the Co-Collateral Agents pursuant to Section 7.5(a) shall demonstrate that, after giving effect to the issuance of such Letter of Credit, no Overadvance shall exist; (g) The Administrative Agent and the Issuing Bank shall have received all such other certificates, reports, statements, opinions of counsel, or other documents as the Administrative Agent or the Issuing Bank may reasonably request in their respective Permitted Discretion and all other conditions to the issuance of such Letter of Credit which are set forth in this Agreement shall have been fulfilled; and (h) Unless otherwise consented to in writing by the Administrative Agent and the Majority Lenders, none of the events or conditions described in Section 9.1(g) or (h) shall then exist with respect to any Borrower Party or any Subsidiary of any Borrower Party; provided that, notwithstanding the consent of the Administrative Agent and the Majority Lenders, no issuance of a Letter of Credit shall be permitted in such instance if such Letter of Credit would be issued for the account or benefit of any Borrower Party, or Subsidiary thereof, as to which any of the events or conditions described in Section 9.1(g) or (h) exist, except such Letter of Credit may be issued for the benefit of such Borrower Party, or Subsidiary thereof, as applicable, to the extent permitted and made as an Investment pursuant to Section 8.5. The Each Borrower hereby agrees that the delivery of any Request for Issuance of Letter of Credit hereunder shall be deemed to be the certification of the applicable Authorized Signatory of the Borrower, on behalf of the Borrower, that there does not exist, on the date of the issuance of the Letter of Credit and after giving effect thereto, a Default or an Event of Default and thereof that all of the other conditions set forth in this Section 3.3 4.3 have been satisfied. Notwithstanding the foregoing, if the conditions, or any of them, set forth above are not satisfied, such conditions may be waived by the requisite Lenders under Section 11.12, and, in any event the Majority Lenders may waive the condition set forth in Section 4.3(c).