Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, Borrower shall submit a Borrowing Request and a LC Application in writing by telecopy to Issuing Bank not later than 1:00 p.m., Dallas, Texas time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Borrowing Request and LC Application shall be signed by Borrower, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, specify the availability for Letters of Credit under the Available Borrowing Base and the $20,000,000 aggregate LC Obligation limitation as of the date of issuance of such Letter of Credit, the expiry date thereof which shall not be later than the earlier of (i) twelve (12) months from the date of issuance of such Letter of Credit and (ii) five (5) days prior to the Termination Date (b) Upon satisfaction of the applicable terms and conditions set forth in Article V, Issuing Bank shall issue such Letter of Credit to the specified beneficiary not later than the close of business, Dallas, Texas time, on the date so specified. Issuing Bank shall provide Borrower and each Bank with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issued, be subject to the rules of the "International Standby Practices 1998" or such later version as may be published by the Institute of International Banking Law and Practice (the "ISP 1998") and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of Texas. (c) Upon the issuance date of each Letter of Credit, Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each other Bank, and each other Bank shall be deemed, without further action by any party hereto, to have purchased from Issuing Bank, a participation, to the extent of such Bank's Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower due in respect of drawings made under such Letter of Credit. If requested by Issuing Bank, the other Banks will execute any other documents reasonably requested by Issuing Bank to evidence the purchase of such participation. (d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which Issuing Bank determines is in compliance with the conditions for payment thereunder, Issuing Bank shall promptly notify Borrower, and each Bank of the intended date of honor of such draft and Borrower hereby promises and agrees, at Borrower's option, to either (i) pay to Issuing Bank, by 2:00 p.m., Dallas, Texas time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections 2.01(a) and 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in Issuing Bank's notice. If Borrower fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a) and/or Section 5.02, each Bank shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to Issuing Bank an amount equal to its Pro Rata Share of the presented draft on the day Issuing Bank is required to honor such draft. If such amount is not in fact made available to Administrative Agent by such Bank on such date, such Bank shall pay to Issuing Bank, on demand made by Issuing Bank, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base Rate. Upon receipt by Administrative Agent from the Banks of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (d) or elsewhere in this Agreement shall diminish Borrower's obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse Issuing Bank for payment of, any draft presented to, and duly honored by, Issuing Bank under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed. (e) In order to induce the issuance of Letters of Credit by Issuing Bank and the purchase of participations therein by the other Banks, Borrower agrees with Issuing Bank and the other Banks that neither Administrative Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by Issuing Bank, as provided in Subsection 2.09(d), on account of drafts so honored under the Letters of Credit shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (including the Issuing Bank) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Issuing Bank. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower and shall not put the Issuing Bank under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Issuing Bank. Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Issuing Bank agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank. (f) In the event that any provision of a Letter of Credit Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern. (g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under this Section 2.09(g) may be applied as Issuing Bank elects to any of the various LC Obligations; provided, however, that such amounts applied by Issuing Bank to the LC Obligations shall be (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. This
Appears in 2 contracts
Samples: Credit Agreement (Stroud Energy Inc), Credit Agreement (Stroud Energy Inc)
Issuing the Letters of Credit. (a) Subject to the terms and conditions set forth herein, the Company may request the Issuing Lender to issue Letters of Credit for its own account or for any of its Subsidiaries, in a form reasonably acceptable to the Administrative Agent and the Issuing Lender, at any time and from time to time during the Availability Period; provided that the Company may not request the issuance, amendment, renewal or extension of Letters of Credit hereunder if (i) the Effective Amount exceeds the Borrowing Base at such time or would exceed the Borrowing Base as a result thereof, or (ii) the aggregate LC Obligation exceeds the Letter of Credit Sublimit or would exceed the Letter of Credit Sublimit as a result thereof.
(b) In order to effect the issuance of a Letter of Credit, Borrower the Company shall submit a Notice of Revolving Credit Borrowing Request and a LC Application in writing by telecopy to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 p.m., DallasHouston, Texas time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Revolving Credit Borrowing Request and LC Application shall be (i) signed by Borrowerthe Company, (ii) specify the Business Day on which such Letter of Credit is to be issued, (iii) specify the purpose for the requested Letter of Credit, (iv) specify the availability for Letters of Credit under (A) the Available Borrowing Base and (B) the $20,000,000 50,000,000 aggregate LC Obligation limitation limitation, as of the date of issuance of such Letter of Credit, (v) specify the expiry date thereof thereof, which shall not be later than the earlier of (iA) twelve (12) months from the date of issuance of such Letter of Credit and (iiB) five seven (57) days Business Days prior to the Termination Date
(b) Upon satisfaction of the applicable terms and conditions set forth in Article V, Issuing Bank shall issue such Letter of Credit to the specified beneficiary not later than the close of business, Dallas, Texas time, on the date so specified. Issuing Bank shall provide Borrower and each Bank with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (iivi) unless otherwise expressly agreed by Issuing Bank and Borrower at the time specify such Letter of Credit is issued, be subject to the rules of the "International Standby Practices 1998" or such later version other matters as may be published by the Institute of International Banking Law and Practice (the "ISP 1998") and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of Texas.
(c) Upon the issuance date of each Letter of Credit, Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each other Bank, and each other Bank shall be deemed, without further action by any party hereto, to have purchased from Issuing Bank, a participation, to the extent of such Bank's Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower due in respect of drawings made under such Letter of Credit. If requested by Issuing Bank, the other Banks will execute any other documents reasonably requested by Issuing Bank to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which Issuing Bank determines is in compliance with the conditions for payment thereunder, Issuing Bank shall promptly notify Borrower, and each Bank of the intended date of honor of such draft and Borrower hereby promises and agrees, at Borrower's option, to either (i) pay to Issuing Bank, by 2:00 p.m., Dallas, Texas time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections 2.01(a) and 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in Issuing Bank's notice. If Borrower fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a) and/or Section 5.02, each Bank shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to Issuing Bank an amount equal to its Pro Rata Share of the presented draft on the day Issuing Bank is required to honor such draft. If such amount is not in fact made available to Administrative Agent by such Bank on such date, such Bank shall pay to Issuing Bank, on demand made by Issuing Bank, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base Rate. Upon receipt by Administrative Agent from the Banks of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (d) or elsewhere in this Agreement shall diminish Borrower's obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse Issuing Bank for payment of, any draft presented to, and duly honored by, Issuing Bank under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed.
(e) In order to induce the issuance of Letters of Credit by Issuing Bank and the purchase of participations therein by the other Banks, Borrower agrees with Issuing Bank and the other Banks that neither Administrative Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by Issuing Bank, as provided in Subsection 2.09(d), on account of drafts so honored under the Letters of Credit shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (including the Issuing Bank) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Issuing Bank. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower and shall not put the Issuing Bank under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Issuing Bank. Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Issuing Bank agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing BankLender.
(f) In the event that any provision of a Letter of Credit Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under this Section 2.09(g) may be applied as Issuing Bank elects to any of the various LC Obligations; provided, however, that such amounts applied by Issuing Bank to the LC Obligations shall be (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. This
Appears in 1 contract
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, Borrower the Company shall submit a Notice of Borrowing Request and a LC Application in writing by telecopy to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 12:00 p.m., DallasChicago, Texas Illinois time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall be signed by Borrowerthe Company, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, specify the availability for Letters of Credit under the Available Borrowing Base Base, and the $20,000,000 aggregate LC Obligation limitation as of the date of issuance of such Letter of Credit, Credit and the expiry date thereof which shall not be later than the earlier of (i) twelve (12) months from the date of issuance Issuance of such Letter of Credit and (ii) five (5) days the seventh Business Day prior to the Termination Date. If requested by the Company not later than three (3) Business Days prior to expiration of any Letter of Credit, any Letter of Credit may be renewed for the additional period specified in Section 2.1(c).
(b) Upon satisfaction of the applicable terms and conditions set forth in Article V, the Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, DallasChicago, Texas Illinois time, on the date so specified. Issuing Bank The Administrative Agent shall provide Borrower the Company and each Bank Lender with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issued, be subject to the rules Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500 (and any subsequent revisions thereof approved by a Congress of the "International Standby Practices 1998" or such later version as may be published by the Institute Chamber of International Banking Law and Practice Commerce) (the "ISP 1998UCP") and shall, as to matters not governed by the ISP 1998UCP, be governed by, and construed and interpreted in accordance with, the laws of the State of TexasNew York.
(c) Upon the issuance date Issuance of each Letter of Credit, the Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing BankLender, a participation, to the extent of such BankLender's Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower the Company due in respect of drawings made under such Letter of Credit. If requested by the Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by the Issuing Bank Lender to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, the Issuing Bank Lender shall promptly notify Borrowerthe Company, the Administrative Agent and each Bank Lender of the intended date of honor of such draft and Borrower the Company hereby promises and agrees, at Borrowerthe Company's option, to either (i) pay to the Administrative Agent for the account of the Issuing BankLender, by 2:00 p.m., DallasChicago, Texas Illinois time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections 2.01(a2.1(a) and 2.02 2.2 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing BankLender's notice. If Borrower the Company fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a2.1(a) and/or or Section 5.025.3, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Administrative Agent for the benefit of the Issuing Bank Lender an amount equal to its Pro Rata Share of the presented draft on the day the Issuing Bank Lender is required to honor such draft. If such amount is not in fact made available to the Administrative Agent by such Bank Lender on such date, such Bank Lender shall pay to the Administrative Agent for the account of the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) two days following demand and thereafter until paid at the Adjusted Base Rate. Upon receipt by the Administrative Agent from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrowerthe Company, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (dSection 2.13(d) or elsewhere in this Agreement shall diminish Borrowerthe Company's obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank Lender for payment of, any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Loan as provided in this paragraph provided Section 2.13(d) shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as agreed in this paragraph agreedSection 2.13(d).
(e) In order to induce the issuance of Letters of Credit by the Issuing Bank Lender and the purchase of participations therein by the other BanksLenders, Borrower the Company agrees with the Administrative Agent, the Issuing Bank Lender and the other Banks Lenders that neither the Administrative Agent nor any Bank Lender (including the Issuing BankLender) shall be responsible or liable (except as provided in the following sentence) for, and Borrowerthe Company's unconditional obligation to reimburse the Issuing Bank Lender through the Administrative Agent for amounts paid by the Issuing BankLender, as provided in Subsection 2.09(d)Section 2.13(d) above, on account of drafts so honored under the Letters of Credit shall not be affected by by, any circumstance, act or omission whatsoever (whether or not known to the Administrative Agent or any Bank Lender (including the Issuing BankLender)) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Administrative Agent or any Lender, including the Issuing BankLender. Borrower The Company agrees that any action taken or omitted to be taken by the Administrative Agent or any Lender (including the Issuing Bank Lender) under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower the Company and shall not put the Administrative Agent or any Lender (including the Issuing Bank Lender) under any resulting liability to Borrowerthe Company, unless such action or omission is the result of the gross negligence or willful misconduct of the Administrative Agent or any such Lender (including the Issuing BankLender). Borrower The Company hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. The Issuing Bank Lender agrees promptly to notify Borrower the Company whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower the Company shall not in any way affect Borrowerthe Company's obligations hereunder. Subject to Section 3.013.7, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrowerthe Company's obligations or the compensation to Issuing Bank any Lender in respect of the Letters of Credit or the cost to Issuing Bank such Lender of establishing and/or or maintaining the Letters of Credit (or any participation therein), Issuing Bank such Lender shall promptly notify Borrower the Company thereof in writing and within ten (10) Business Days after receipt by Borrower the Company of Issuing Banksuch Lender's request (through the Administrative Agent) for reimbursement or indemnification or within thirty (30) 30 days after receipt of a notice in respect of Taxes or Other Taxes, Borrower the Company shall reimburse or indemnify Issuing Banksuch Lender, as the case may be, with respect thereto so that Issuing Bank such Lender shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower the Company to reimburse or indemnify the Issuing Bank Lenders shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes Taxes or monetary restraints, except a change in franchise taxes Taxes imposed on Issuing Bank such Lender or in tax Tax on the net income of Issuing Banksuch Lender.
(f) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all the entirety of the LC Obligations Obligation shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower the Company shall be obligated to pay to the Administrative Agent immediately an amount equal to the entirety of the LC ObligationsObligation. All amounts made due and payable by Borrower the Company under this Section 2.09(g2.13(g) may be applied as the Issuing Bank elects Lender and the Lenders elect to any of the various LC ObligationsObligation; provided, however, that such amounts applied by the Issuing Bank Lender and the Lenders to the LC Obligations Obligation shall be (ai) first applied to the Matured LC ObligationsObligation, and (bii) second held by the Administrative Agent in an interest bearing account for the benefit of the Issuing Bank Lender and the Lenders as LC Collateral, such LC Collateral to be held in an account with the Administrative Agent or an Affiliate thereof, until such remaining portion of the LC Obligation has either (i) become a portion of the Matured LC Obligation, at which time such LC Collateral Account until all remaining Obligations paid to the Administrative Agent shall be applied to such Matured LC Obligation, or (ii) expired undrawn, at which time an amount of such LC Collateral equal to such expired and undrawn LC Obligation, plus accrued interest thereon, shall be applied as otherwise required or permitted under Article IX. This Section 2.13(g) shall not limit or impair any rights which the Administrative Agent, the Issuing Lender or any of the Lenders may have been satisfiedunder any other document or agreement relating to any Letter of Credit or portion of the LC Obligation, including without limitation, any LC Application. ThisARTICLE III
Appears in 1 contract
Samples: Credit Agreement (Venoco, Inc.)
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, the Borrower shall submit a Borrowing Request and a LC Letter of Credit Application in writing by telecopy to the Agent (who shall promptly notify the Issuing Bank Bank) not later than 1:00 p.m.12:00 noon, DallasHouston, Texas time, three two (32) Business Days before the requested date of issuance of such Letter of Credit. Each such Borrowing Request and LC Letter of Credit Application shall be signed by the Borrower, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, and specify the availability for Letters of Credit under the Available Borrowing Base Letter of Credit Commitment and the $20,000,000 aggregate LC Obligation limitation Available Commitment as of the date of issuance of such Letter of Credit, Credit and the expiry date thereof which shall not be later than the earlier of (i) twelve (12) months from the date of issuance of such Letter of Credit and (ii) five (5) days prior to the Termination Maturity Date; provided, however, that the Borrower may request evergreen Letters of Credit that automatically renew on their expiry date for an additional one year period so long as the final expiry date thereof is on or before the Maturity Date.
(b) Upon satisfaction of the applicable terms and conditions set forth in Article VIV, the Issuing Bank shall issue such Letter of Credit to the specified beneficiary not later than the close of business, DallasHouston, Texas time, on the date so specified. Issuing Bank The Agent shall provide the Borrower and each Bank with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issued, be subject to the rules Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500, (and any subsequent revisions thereof approved by a Congress of the "International Standby Practices 1998" or such later version as may be published by the Institute Chamber of International Banking Law and Practice Commerce) (the "ISP 1998UCP") and shall, as to matters not governed by the ISP 1998UCP, be governed by, and construed and interpreted in accordance with, the laws of the State of Texas.
(c) Upon the issuance date of each Letter of Credit, the Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each other Bank, and each other Bank shall be deemed, without further action by any party hereto, to have purchased from the Issuing Bank, a participation, to the extent of such Bank's Pro Rata ShareCommitment Percentage, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of the Borrower due in respect of drawings made under such Letter of Credit. If requested by the Issuing Bank, the other Banks will execute any other documents reasonably requested by the Issuing Bank to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank determines is in compliance with the conditions for payment thereunder, the Issuing Bank shall promptly notify the Borrower, the Agent and each Bank of the intended date of honor of such draft and the Borrower hereby promises and agrees, at the Borrower's option, to either (i) pay to the Agent for the account of the Issuing Bank, by 2:00 1:00 p.m., DallasHouston, Texas time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Revolving Credit Loan pursuant to the provisions of Sections 2.01(a) 2.1 and 2.02 2.2 of this Credit Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing Bank's notice. If the Borrower fails timely to make such payment because a Revolving Credit Loan cannot be made pursuant to Section 2.01(a2.1(a) and/or Section 5.02and Article IV, each Bank shall, notwithstanding any other provision of this Credit Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Agent for the benefit of the Issuing Bank an amount equal to its Pro Rata Share Commitment Percentage of the presented draft on the day the Issuing Bank is required to honor such draft. If such amount is not in fact made available to Administrative the Agent by such Bank on such date, such Bank shall pay to the Agent for the account of the Issuing Bank, on demand made by the Issuing Bank, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base Rate. Upon receipt by Administrative Agent from the Banks of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (d) or elsewhere in this Agreement shall diminish Borrower's obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse Issuing Bank for payment of, any draft presented to, and duly honored by, Issuing Bank under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed.
(e) In order to induce the issuance of Letters of Credit by Issuing Bank and the purchase of participations therein by the other Banks, Borrower agrees with Issuing Bank and the other Banks that neither Administrative Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by Issuing Bank, as provided in Subsection 2.09(d), on account of drafts so honored under the Letters of Credit shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (including the Issuing Bank) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Issuing Bank. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower and shall not put the Issuing Bank under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Issuing Bank. Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Issuing Bank agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(f) In the event that any provision of a Letter of Credit Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under product of (i) the average daily Federal Funds Effective Rate per annum during the period referred to in clause (iii) of this Section 2.09(gsentence times (ii) may be applied as the amount of such Bank's Commitment Percentage of the presented draft times (iii) the number of days that elapse from the day the Issuing Bank elects honors such draft to any the date on which the amount equal to such Bank's Commitment Percentage of the various LC Obligations; provided, however, that such amounts applied by presented draft becomes immediately available to the Issuing Bank to the LC Obligations shall be divided (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. Thisiv)
Appears in 1 contract
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, Borrower the Company shall submit a Notice of Borrowing Request and a LC Application in writing by telecopy to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 12:00 p.m., DallasChicago, Texas Illinois time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall be signed by Borrowerthe Company, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, specify the availability for Letters of Credit under the Available Borrowing Base Base, and the $20,000,000 15,000,000 aggregate LC Obligation limitation as of the date of issuance of such Letter of Credit, Credit and the expiry date thereof which shall not be later than the earlier of (i) twelve (12) months from the date of issuance Issuance of such Letter of Credit and (ii) five (5) days the seventh Business Day prior to the Termination Date.
(b) Upon satisfaction of the applicable terms and conditions set forth in Article V, the Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, DallasChicago, Texas Illinois time, on the date so specified. Issuing Bank The Administrative Agent shall provide Borrower the Company and each Bank Lender with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issued, be subject to the rules Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500 (and any subsequent revisions thereof approved by a Congress of the "International Standby Practices 1998" or such later version as may be published by the Institute Chamber of International Banking Law and Practice Commerce) (the "ISP 1998UCP") and shall, as to matters not governed by the ISP 1998UCP, be governed by, and construed and interpreted in accordance with, the laws of the State of TexasNew York.
(c) Upon the issuance date Issuance of each Letter of Credit, the Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing BankLender, a participation, to the extent of such BankLender's Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower the Company due in respect of drawings made under such Letter of Credit. If requested by the Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by the Issuing Bank Lender to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, the Issuing Bank Lender shall promptly notify Borrowerthe Company, the Administrative Agent and each Bank Lender of the intended date of honor of such draft and Borrower the Company hereby promises and agrees, at Borrowerthe Company's option, to either (i) pay to the Administrative Agent for the account of the Issuing BankLender, by 2:00 p.m., DallasChicago, Texas Illinois time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Revolving Credit Loan pursuant to the provisions of Sections 2.01(a2.1(a) and 2.02 2.2 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing BankLender's notice. If Borrower the Company fails timely to make such payment because a Revolving Credit Loan cannot be made pursuant to Section 2.01(a2.1(a) and/or Section 5.025.2, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Administrative Agent for the benefit of the Issuing Bank Lender an amount equal to its Pro Rata Share of the presented draft on the day the Issuing Bank Lender is required to honor such draft. If such amount is not in fact made available to the Administrative Agent by such Bank Lender on such date, such Bank Lender shall pay to the Administrative Agent for the account of the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) two days following demand and thereafter until paid at the Adjusted Base Rate. Upon receipt by the Administrative Agent from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrowerthe Company, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (dSection 2.13(d) or elsewhere in this Agreement shall diminish Borrowerthe Company's obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank Lender for payment of, any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Revolving Credit Loan as provided in this paragraph provided Section 2.13(d) shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as agreed in this paragraph agreedSection 2.13(d).
(e) In order to induce the issuance of Letters of Credit by the Issuing Bank Lender and the purchase of participations therein by the other BanksLenders, Borrower the Company agrees with the Administrative Agent, the Issuing Bank Lender and the other Banks Lenders that neither the Administrative Agent nor any Bank Lender (including the Issuing BankLender) shall be responsible or liable (except as provided in the following sentence) for, and Borrowerthe Company's unconditional obligation to reimburse the Issuing Bank Lender through the Administrative Agent for amounts paid by the Issuing BankLender, as provided in Subsection 2.09(d)Section 2.13(d) above, on account of drafts so honored under the Letters of Credit shall not be affected by by, any circumstance, act or omission whatsoever (whether or not known to the Administrative Agent or any Bank Lender (including the Issuing BankLender)) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Administrative Agent or any Lender, including the Issuing BankLender. Borrower The Company agrees that any action taken or omitted to be taken by the Administrative Agent or any Lender (including the Issuing Bank Lender) under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower the Company and shall not put the Administrative Agent or any Lender (including the Issuing Bank Lender) under any resulting liability to Borrowerthe Company, unless such action or omission is the result of the gross negligence or willful misconduct of the Administrative Agent or any such Lender (including the Issuing BankLender). Borrower The Company hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. The Issuing Bank Lender agrees promptly to notify Borrower the Company whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower the Company shall not in any way affect Borrowerthe Company's obligations hereunder. Subject to Section 3.013.7, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrowerthe Company's obligations or the compensation to Issuing Bank any Lender in respect of the Letters of Credit or the cost to Issuing Bank such Lender of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank such Lender shall promptly notify Borrower the Company thereof in writing and within ten (10) Business Days after receipt by Borrower the Company of Issuing Banksuch Lender's request (through the Administrative Agent) for reimbursement or indemnification or within thirty (30) 30 days after receipt of a notice in respect of Taxes or Other Taxes, Borrower the Company shall reimburse or indemnify Issuing Banksuch Lender, as the case may be, with respect thereto so that Issuing Bank such Lender shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower the Company to reimburse or indemnify the Issuing Bank Lenders shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes Taxes or monetary restraints, except a change in franchise taxes Taxes imposed on Issuing Bank such Lender or in tax Tax on the net income of Issuing Banksuch Lender.
(f) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all the entirety of the LC Obligations Obligation shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower the Company shall be obligated to pay to the Administrative Agent immediately an amount equal to the entirety of the LC ObligationsObligation. All amounts made due and payable by Borrower the Company under this Section 2.09(g2.13(g) may be applied as the Issuing Bank elects Lender and the Lenders elect to any of the various LC ObligationsObligation; provided, however, that such amounts applied by the Issuing Bank Lender and the Lenders to the LC Obligations Obligation shall be (ai) first applied to the Matured LC ObligationsObligation, and (bii) second held by the Administrative Agent in an interest bearing account for the benefit of the Issuing Bank Lender and the Lenders as LC Collateral, such LC Collateral to be held in an account with the Administrative Agent or an Affiliate thereof, until such remaining portion of the LC Obligation has either (i) become a portion of the Matured LC Obligation, at which time such LC Collateral Account until all remaining Obligations paid to the Administrative Agent shall be applied to such Matured LC Obligation, or (ii) expired undrawn, at which time an amount of such LC Collateral equal to such expired and undrawn LC Obligation, plus accrued interest thereon, shall be applied as otherwise required or permitted under Article IX. This Section 2.13(g) shall not limit or impair any rights which the Administrative Agent, the Issuing Lender or any of the Lenders may have been satisfied. Thisunder any other document or agreement relating to any Letter of Credit or portion of the LC Obligation, including without limitation, any LC Application.
Appears in 1 contract
Samples: Credit Agreement (BMC, Ltd.)
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, Borrower shall submit a Notice of Borrowing Request and a LC Application in writing by telecopy to Issuing Bank Lender not later than 1:00 p.m., DallasHouston, Texas time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall be signed by Borrower, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, specify the availability for Letters of Credit under the Available Borrowing Base Commitment and the $20,000,000 aggregate LC Obligation Letter of Credit Sub-Facility Amount limitation as of the date of issuance of such Letter of Credit, and the expiry date thereof which shall not be later than the earlier of (i) twelve (12) months from the date of issuance of such Letter of Credit and (ii) five (5) days Business Days prior to the Termination Date.
(b) Upon satisfaction of the applicable terms and conditions set forth in Article V, Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, Dallas, Texas timebusiness at Issuing Lender’s principal address set forth on Appendix I, on the date so specified. Issuing Bank Lender shall provide Borrower and each Bank other Lender with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank Lender and Borrower at the time such Letter of Credit is issued, be subject to the rules of the "“International Standby Practices of 1998" ” or such later version as may be published by the Institute of International Banking Law and Practice (the "“ISP 1998"”) and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of TexasNew York.
(c) Upon the issuance date of each Letter of Credit, Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from Issuing BankLender, a participation, to the extent of such Bank's Lender’s Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower due in respect of drawings made under such Letter of Credit. If requested by Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by Issuing Bank Lender to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, Issuing Bank Lender shall promptly notify Borrower, Borrower and each Bank other Lender of the intended date of honor of such draft and Borrower hereby promises and agrees, at Borrower's ’s option, to either (i) pay to Issuing BankLender, by 2:00 p.m., Dallas, Texas time, on within one (1) Business Day of the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Revolving Credit Loan pursuant to the provisions of Sections Section 2.01(a) and Section 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date of such Revolving Credit Loan is to be within one (1) Business Day of the date payment is due under the Letter of Credit as specified in the Issuing Bank's Lender’s notice. If Borrower fails to timely to make such payment because such a Revolving Credit Loan cannot be made pursuant to Section 2.01(a) and/or Section 5.022.02, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Issuing Bank Lender an amount equal to its such Lender’s Pro Rata Share of the presented draft on the day the Issuing Bank Lender is required to so honor such draft. If such amount is not in fact made available to Administrative Agent the Issuing Lender by such Bank Lender on such date, such Bank Lender shall pay to the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base RateRate thereafter until paid. Upon receipt by Administrative Agent the Issuing Lender from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) ), the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph Paragraph (d) or elsewhere in this Agreement shall diminish Borrower's ’s obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank Lender for payment of, of any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph is agreed.
(e) In order to induce the issuance of Letters of Credit by the Issuing Bank Lender and the purchase of participations therein by the other BanksLenders, Borrower agrees with the Issuing Bank Lender and the other Banks Lenders that neither none of Administrative Agent nor any Bank (including Agent, the Issuing Bank) Lender or any other Lender shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by the Issuing BankLender, as provided in Subsection Section 2.09(d)) above, on account of drafts so honored under the Letters of Credit Credit, and Borrower’s unconditional obligation to reimburse the Issuing Lender for such amounts shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (Lender, including the Issuing BankLender) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Issuing BankLender. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank Lender under or in connection with any Letter of Credit or any related draft, document or Property property shall be binding on Borrower and shall not put the Issuing Bank Lender under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Issuing BankLender. Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. The Issuing Bank Lender agrees to promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's ’s obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(f) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX X of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under this Section 2.09(g) may be applied as the Issuing Bank Lender elects to any of the various LC Obligations; provided, however, that such amounts applied by the Issuing Bank Lender to the LC Obligations shall be (a) first applied to the Matured LC Obligations, and (b) second held by the Issuing Bank Lender as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. This
Appears in 1 contract
Samples: Credit Agreement (Midstates Petroleum Company, Inc.)
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, Borrower shall submit a Borrowing Request and a LC Application in writing by telecopy to Issuing Bank not later than 1:00 p.m., Dallas, Texas time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Borrowing Request and LC Application shall be signed by Borrower, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, specify the availability for Letters of Credit under the Available Borrowing Base and the $20,000,000 aggregate Aggregate LC Obligation limitation Limitation as of the date of issuance of such Letter of Credit, the expiry date thereof which shall not be later than the earlier of (i) twelve (12) months from the date of issuance of such Letter of Credit and (ii) five (5) days prior to the Termination DateDate and be accompanied by a current Pricing Grid Certificate.
(b) Upon satisfaction of the applicable terms and conditions set forth in Article V, Issuing Bank shall issue such Letter of Credit to the specified beneficiary not later than the close of business, Dallas, Texas time, on the date so specified. Issuing Bank shall provide Borrower and each Bank with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issued, be subject to the rules of the "International Standby Practices 1998" or such later version as may be published by the Institute of International Banking Law and Practice (the "ISP 1998") and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of Texas.
(c) Upon the issuance date of each Letter of Credit, Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each other Bank, and each other Bank shall be deemed, without further action by any party hereto, to have purchased from Issuing Bank, a participation, to the extent of such Bank's Pro Rata ShareCommitment Percentage, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower due in respect of drawings made under such Letter of Credit. If requested by Issuing Bank, the other Banks will execute any other documents reasonably requested by Issuing Bank to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which Issuing Bank determines is in compliance with the conditions for payment thereunder, Issuing Bank shall promptly notify Borrower, and each Bank of the intended date of honor of such draft and Borrower hereby promises and agrees, at Borrower's option, to either (i) pay to Issuing Bank, by 2:00 p.m., Dallas, Texas time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections 2.01(a) and 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in Issuing Bank's notice. If Borrower fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a) and/or Section 5.02, each Bank shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to Issuing Bank an amount equal to its Pro Rata Share of the presented draft on the day Issuing Bank is required to honor such draft. If such amount is not in fact made available to Administrative Agent by such Bank on such date, such Bank shall pay to Issuing Bank, on demand made by Issuing Bank, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base Rate. Upon receipt by Administrative Agent from the Banks of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (d) or elsewhere in this Agreement shall diminish Borrower's obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse Issuing Bank for payment of, any draft presented to, and duly honored by, Issuing Bank under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed.
(e) In order to induce the issuance of Letters of Credit by Issuing Bank and the purchase of participations therein by the other Banks, Borrower agrees with Issuing Bank and the other Banks that neither Administrative Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by Issuing Bank, as provided in Subsection 2.09(d)) above, on account of drafts so honored under the Letters of Credit shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (including the Issuing Bank) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Issuing Bank. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower and shall not put the Issuing Bank under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Issuing Bank. Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Issuing Bank agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's obligations hereunder. Subject to Section 3.013.02, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on imposedon Issuing Bank or in tax on the net income of Issuing Bank.
(f) In the event that any provision of a Letter of Credit Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under this Section 2.09(g) may be applied as Issuing Bank elects to any of the various LC Obligations; provided, however, that such amounts applied by Issuing Bank to the LC Obligations shall be (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. This
Appears in 1 contract
Issuing the Letters of Credit. (a) In order to effect the ----------------------------- issuance of a Letter of Credit, Borrower shall submit a Borrowing Request and a LC Letter of Credit Application in writing by telecopy to the Agent (who shall promptly notify the Issuing Bank Bank) not later than 1:00 p.m.12:00 noon, DallasHouston, Texas time, three two (32) Business Days before the requested date of issuance of such Letter of Credit. Each such Borrowing Request and LC Letter of Credit Application shall (i) be signed by Borrower, (ii) specify the Business Day on which such Letter of Credit is to be issued, (iii) specify the purpose for the requested Letter of CreditIssuing Bank, and (iv) specify the availability for Letters of Credit under the Available Borrowing Base Letter of Credit Commitment and the $20,000,000 aggregate LC Obligation limitation Total Commitment as of the date of issuance of such Letter of Credit, Credit and the expiry expiration date thereof which shall not be later than the earlier of (iA) twelve (12) months from the date of issuance of such Letter of Credit and (iiB) five (5) days prior to the Termination Maturity Date; provided, however, that Borrower may request evergreen Letters of -------- ------- Credit that automatically renew for additional one year periods so long as the final expiry date thereof is on or before the Maturity Date.
(b) Upon satisfaction of the applicable terms and conditions set forth in Article VIII, the Issuing Bank shall issue such Letter of Credit to the specified ----------- beneficiary not later than the close of business, DallasHouston, Texas time, on the date so specified. Issuing Bank The Agent shall provide Borrower and each Bank with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issued, be subject to the rules Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500, (and any subsequent revisions thereof approved by a Congress of the "International Standby Practices 1998" or such later version as may be published by the Institute Chamber of International Banking Law and Practice Commerce) (the "ISP 1998UCP") and shall, as to matters not governed by the ISP 1998UCP, be governed by, and construed and interpreted in accordance with, the laws of the State of Texas.
(c) Upon the issuance date of each Letter of Credit, the Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each other Bank, and each other Bank shall be deemed, without further action by any party hereto, to have purchased from the Issuing Bank, a participation, to the extent of such Bank's Pro Rata ShareCommitment Percentage, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower due in respect of drawings made under such Letter of Credit. If requested by the Issuing Bank, the other Banks will execute any other documents reasonably requested by the Issuing Bank to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank determines is in compliance with the conditions for payment thereunder, the Issuing Bank shall promptly notify Borrower, the Agent and each Bank of the intended date of honor of such draft and Borrower hereby promises and agrees, at Borrower's option, to either (i) pay to the Agent for the account of the Issuing Bank, by 2:00 1:00 p.m., DallasHouston, Texas time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections 2.01(a) 2.01 and 2.02 2.03 of this Credit Agreement in ---------------------- the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing Bank's notice. If Borrower fails timely to make such payment because a Loan cannot be made pursuant to Section Sections 2.01(a) and/or Section 5.02and 3.02, each Bank ------------------------- shall, notwithstanding any other provision of this Credit Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Agent for the benefit of the Issuing Bank an amount equal to its Pro Rata Share Commitment Percentage of the presented draft on the day Issuing Bank is required to honor such draft. If such amount is not in fact made available to Administrative Agent by such Bank on such date, such Bank shall pay to Issuing Bank, on demand made by Issuing Bank, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base Rate. Upon receipt by Administrative Agent from the Banks of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (d) or elsewhere in this Agreement shall diminish Borrower's obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse Issuing Bank for payment of, any draft presented to, and duly honored by, Issuing Bank under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed.
(e) In order to induce the issuance of Letters of Credit by Issuing Bank and the purchase of participations therein by the other Banks, Borrower agrees with Issuing Bank and the other Banks that neither Administrative Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by Issuing Bank, as provided in Subsection 2.09(d), on account of drafts so honored under the Letters of Credit shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (including the Issuing Bank) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Issuing Bank. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower and shall not put the Issuing Bank under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Issuing Bank. Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Issuing Bank agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(f) In the event that any provision of a Letter of Credit Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under this Section 2.09(g) may be applied as Issuing Bank elects to any of the various LC Obligations; provided, however, that such amounts applied by Issuing Bank to the LC Obligations shall be (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. ThisIssuing
Appears in 1 contract
Samples: Revolving Credit Agreement (Barrett Resources Corp)
Issuing the Letters of Credit. (a) Subject to the terms and conditions set forth herein, the Company may request the Issuing Lender to issue Letters of Credit for its own account or for any of its Subsidiaries, in a form reasonably acceptable to the Administrative Agent and the Issuing Lender, at any time and from time to time during the Availability Period; provided that the Company may not request the issuance, amendment, renewal or extension of Letters of Credit hereunder if the Effective Amount exceeds the Borrowing Base at such time or would exceed the Borrowing Base as a result thereof.
(b) In order to effect the issuance of a Letter of Credit, Borrower the Company shall submit a Notice of Borrowing Request and a LC Application in writing by telecopy to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 p.m., DallasHouston, Texas time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall be (i) signed by Borrowerthe Company, (ii) specify the Business Day on which such Letter of Credit is to be issued, (iii) specify the purpose for the requested Letter of Credit, (iv) specify the availability for Letters of Credit under (A) the Available Borrowing Base and (B) the $20,000,000 5,000,000 aggregate LC Obligation limitation limitation, as of the date of issuance of such Letter of Credit, and (v) specify the expiry date thereof thereof, which shall not be later than the earlier of (iA) twelve (12) months from the date of issuance of such Letter of Credit and (iiB) five seven (57) days Business Days prior to the Termination Date.
(bc) Upon satisfaction of the applicable terms and conditions set forth in Article V, the Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, DallasHouston, Texas time, on the date so specified. Issuing Bank The Administrative Agent shall provide Borrower the Company and each Bank Lender with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by the Issuing Bank Lender and Borrower the Company at the time such Letter of Credit is issued, be subject to the rules of the "“International Standby Practices 1998" ” or such later version as may be published by the Institute of International Banking Law and Practice (the "“ISP 1998") ”), or any successor entity, and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of Texas.
(cd) Upon the issuance date of each Letter of Credit, the Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing BankLender, a participation, to the extent of such Bank's Lender’s Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower the Company due in respect of drawings made under such Letter of Credit. If requested by the Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by the Issuing Bank Lender to evidence the purchase of such participation.
(de) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, the Issuing Bank Lender shall promptly notify Borrowerthe Company, the Administrative Agent and each Bank Lender of the intended date of honor of such draft and Borrower the Company hereby promises and agrees, at Borrower's the Company’s option, to either (i) pay to the Administrative Agent for the account of the Issuing BankLender, by 2:00 p.m., DallasHouston, Texas time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections Subsection 2.01(a) and Section 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing Bank's Lender’s notice. If Borrower the Company fails timely to make such payment because a Loan cannot be made pursuant to Section Subsection 2.01(a) and/or Section 5.02, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Administrative Agent for the benefit of the Issuing Bank Lender an amount equal to its Pro Rata Share of the presented draft on the day the Issuing Bank Lender is required to honor such draft. If such amount is not in fact made available to the Administrative Agent by such Bank Lender on such date, such Bank Lender shall pay to the Administrative Agent for the account of the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) two days following demand and thereafter until paid at the Base Rate. Upon receipt by the Administrative Agent from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrowerthe Company, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (dSubsection 2.05(d) or elsewhere in this Agreement shall diminish Borrower's the Company’s obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank Lender for payment of, any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed.
(ef) In order to induce the issuance of Letters of Credit by the Issuing Bank Lender and the purchase of participations therein by the other BanksLenders, Borrower the Company agrees with Administrative Agent, Issuing Bank Lender and the other Banks Lenders that neither Administrative Agent nor any Bank Lender (including the Issuing BankLender) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by Issuing BankLender, as provided in Subsection 2.09(d2.10(e), on account of drafts so honored under the Letters of Credit Credit, and the Company’s unconditional obligation to reimburse the Issuing Lender through the Administrative Agent for such amounts shall not be affected by by, any circumstance, act or omission whatsoever (whether or not known to the Administrative Agent or any Bank Lender (including the Issuing BankLender) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Administrative Agent or any Lender, including the Issuing BankLender. Borrower The Company agrees that any action taken or omitted to be taken by the Administrative Agent or any Lender (including the Issuing Bank Lender) under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower the Company and shall not put the Administrative Agent or any Lender (including the Issuing Bank Lender) under any resulting liability to Borrowerthe Company, unless such action or omission is the result of the gross negligence or willful misconduct of the Administrative Agent or any such Lender (including the Issuing BankLender). Borrower The Company hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. The Issuing Bank Lender agrees promptly to notify Borrower the Company whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower the Company shall not in any way affect Borrower's the Company’s obligations hereunder. Subject to Section 3.013.07, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's the Company’s obligations or the compensation to Issuing Bank any Lender in respect of the Letters of Credit or the cost to Issuing Bank such Lender of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank such Lender shall promptly notify Borrower the Company thereof in writing and within ten (10) Business Days after receipt by Borrower the Company of Issuing Bank's such Lender’s request (through the Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower the Company shall reimburse or indemnify Issuing Banksuch Lender, as the case may be, with respect thereto so that Issuing Bank such Lender shall be in the same position as if there had been no such enforcement, adoption or interpretation, unless the Company notifies the Administrative Agent of its good faith contest to, and dispute of, the requested amount. The foregoing agreement of Borrower the Company to reimburse or indemnify the Issuing Bank Lenders shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank such Lender or in tax on the net income of Issuing Banksuch Lender.
(fg) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(gh) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this AgreementAgreement (for the purposes of this paragraph, the “Matured Obligations”), then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower the Company shall be obligated to pay to the Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower the Company under this Section 2.09(gSubsection 2.10(h) may be applied as the Issuing Bank elects Lender and the Lenders elect to any of the various LC Obligations; provided, however, that such amounts applied by the Issuing Bank Lender and the Lenders to the LC Obligations shall be (ai) first applied to the Matured LC Obligations, and (bii) second held by the Administrative Agent for the benefit of the Issuing Bank Lender and the Lenders as LC Collateral in the LC Collateral Account until all remaining Matured Obligations have been satisfied. This
Appears in 1 contract
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, the Borrower shall submit a Borrowing Request and a LC Application in writing by telecopy to the Agent (who shall promptly notify the Issuing Bank Bank) not later than 1:00 p.m., Dallas, Texas New York time, three two (32) Business Days before the requested date of issuance of such Letter of Credit. Each such Borrowing Request and LC Application shall be signed by the Borrower, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, and specify the availability for Letters of Credit under the Available Borrowing Base and the $20,000,000 aggregate LC Obligation limitation as of the date of issuance of such Letter of Credit, Credit and the expiry date thereof which shall not be later than the earlier of (i) twelve (12) months from the date of issuance of such Letter of Credit and (ii) five (5) days prior to the Termination Maturity Date.
(b) Upon satisfaction of the applicable terms and conditions set forth in Article VARTICLE IV, the Issuing Bank shall issue such Letter of Credit to the specified beneficiary not later than the close of business, Dallas, Texas New York time, on the date so specified. Issuing Bank The Agent shall provide the Borrower and each Bank with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issuedBE SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), be subject to the rules of the INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500, (AND ANY SUBSEQUENT REVISIONS THEREOF APPROVED BY A CONGRESS OF THE INTERNATIONAL CHAMBER OF COMMERCE) (THE "International Standby Practices 1998" or such later version as may be published by the Institute of International Banking Law and Practice (the "ISP 1998UCP") and shallAND SHALL, as to matters not governed by the ISP 1998AS TO MATTERS NOT GOVERNED BY THE UCP, be governed byBE GOVERNED BY, and construed and interpreted in accordance withAND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, the laws of the State of TexasTHE LAWS OF THE STATE OF NEW YORK.
(c) Upon the issuance date of each Letter of Credit, the Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each other Bank, and each other Bank shall be deemed, without further action by any party hereto, to have purchased from the Issuing Bank, a participation, to the extent of such Bank's Pro Rata ShareCommitment Percentage, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of the Borrower due in respect of drawings made under such Letter of Credit. If requested by the Issuing Bank, the other Banks will execute any other documents reasonably requested by the Issuing Bank to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank determines is in compliance with the conditions for payment thereunder, the Issuing Bank shall promptly notify the Borrower, the Agent and each Bank of the intended date of honor of such draft and the Borrower hereby promises and agrees, at the Borrower's option, to either (i) pay to the Agent for the account of the Issuing Bank, by 2:00 p.m., Dallas, Texas New York time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections 2.01(aSECTIONS 2.1(A) and 2.02 AND 2.2 of this Credit Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing Bank's notice. If the Borrower fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(aSECTION 2.1(A) and/or Section 5.02SECTION 4.2, each Bank shall, notwithstanding any other provision of this Credit Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Agent for the benefit of the Issuing Bank an amount equal to its Pro Rata Share Commitment Percentage of the presented draft on the day the Issuing Bank is required to honor such draft. If such amount is not in fact made available to Administrative the Agent by such Bank on such date, such Bank shall pay to the Agent for the account of the Issuing Bank, on demand made by the Issuing Bank, in addition to such amount, interest thereon at an amount equal to the product of (i) the average daily Federal Funds Effective Rate for per annum during the first three period referred to in clause (3iii) of this sentence TIMES (ii) the amount of such Bank's Commitment Percentage of the presented draft TIMES (iii) the number of days following demand and thereafter until paid at that elapse from the Base Rateday the Issuing Bank honors such draft to the date on which the amount equal to such Bank's Commitment Percentage of the presented draft becomes immediately available to the Issuing Bank DIVIDED by 360. Upon receipt by Administrative the Agent from the Banks of the full amount of such draft, notwithstanding any other provision of this Credit Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by the Borrower, be deemed to have been a Base Rate Loan Borrowing as of the date of payment of such draft. Nothing in this paragraph (d) or elsewhere in this Credit Agreement shall diminish the Borrower's obligation under this Credit Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank for payment of, any draft presented to, and duly honored by, the Issuing Bank under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed.
(e) In order to induce the issuance of Letters of Credit by the Issuing Bank and the purchase of participations therein by the other Banks, the Borrower agrees with the Agent, the Issuing Bank and the other Banks that neither Administrative the Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and the Borrower's unconditional obligation to reimburse the Issuing Bank through the Agent for amounts paid by the Issuing Bank, as provided in Subsection 2.09(d)SUBSECTION 2.11(D) ABOVE, on account of drafts so honored under the Letters of Credit shall not be affected by by, any circumstance, act or omission whatsoever (whether or not known to Administrative the Agent or any Bank (including the Issuing Bank) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Agent or any Bank, including the Issuing Bank). The Borrower agrees that any action taken or omitted to be taken by the Agent or any Bank (including the Issuing Bank Bank) under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on the Borrower and shall not put the Agent or any Bank (including the Issuing Bank Bank) under any resulting liability to the Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Agent or any such Bank (including the Issuing Bank). The Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. The Issuing Bank agrees promptly to notify the Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify the Borrower shall not in any way affect the Borrower's obligations hereunder. Subject to Section 3.01SECTIONS 2.19 AND 2.20, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of the Borrower's obligations or the compensation to Issuing any Bank in respect of the Letters of Credit or the cost to Issuing such Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing such Bank shall promptly notify the Borrower thereof in writing and within ten (10) Business Days after receipt by the Borrower of Issuing such Bank's request (through Administrative the Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Reimbursable Taxes, the Borrower shall reimburse or indemnify Issuing such Bank, as the case may be, with respect thereto so that Issuing such Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation, unless the Borrower notifies the Agent of its good faith contest to, and dispute of, the requested amount. The foregoing agreement of the Borrower to reimburse or indemnify the Issuing Bank Banks shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing such Bank or in tax on the net income of Issuing such Bank.
(f) In the event that any provision of a Letter of Credit Application is inconsistent with, or in conflict of, any provision of this Credit Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Credit Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX ARTICLE VIII of this Credit Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and the Borrower shall be obligated to pay to Administrative the Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by the Borrower under this Section 2.09(gSECTION 2.11(G) may be applied as the Issuing Bank elects and the Banks elect to any of the various LC Obligations; providedPROVIDED, howeverHOWEVER, that an such amounts applied by the Issuing Bank and the Banks to the LC Obligations shall be (a) first applied to the Matured LC Obligations, and (b) second held by the Agent for the benefit of the Issuing Bank and the Banks as LC Collateral in the until such remaining LC Obligations have either (i) become Matured LC Obligations, at which time such LC Collateral Account until all remaining Obligations paid to the Agent shall be applied to such Matured LC Obligations, or (ii) have been satisfiedexpired undrawn, at which time an amount of such LC Collateral equal to such expired and undrawn LC Obligation shall be promptly returned to the Borrower. ThisThis SECTION 2.11(G) shall not limit or impair any rights which the Agent, the Issuing Bank or any of the Banks may have under any other document or agreement relating to any Letter of Credit or LC Obligation, including without limitation, any LC Application.
Appears in 1 contract
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of CreditCredit by any Issuing Lender, Borrower shall submit a Notice of Borrowing Request and a LC Application in writing by telecopy to such Issuing Bank Lender not later than 1:00 p.m., Dallasp.m. (Houston, Texas time, ) three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall be signed by Borrower, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, specify the amount of expected availability for Letters of Credit under the Available Borrowing Base Commitment and the $20,000,000 aggregate LC Obligation limitation Letter of Credit Sub-Facility Amount as of the date of issuance of such Letter of Credit, and the expiry date thereof which shall not be later than the earlier of (i) twelve (12) months from the date of issuance of such Letter of Credit and (ii) five (5) days Business Days prior to the Termination Date.
(b) Upon satisfaction of the applicable terms and conditions set forth in Article V, the applicable Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, Dallas, Texas timebusiness at such Issuing Lender’s principal address set forth on Appendix I, on the date so specified. Each applicable Issuing Bank Lender shall provide Borrower and each Bank Administrative Agent with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by the applicable Issuing Bank Lender and Borrower at the time such Letter of Credit is issued, be subject to the rules of the "“International Standby Practices of 1998" ” or such later version as may be published by the Institute of International Banking Law and Practice (the "“ISP 1998"”) and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of TexasNew York.
(c) Upon the issuance date of each Letter of Credit, the applicable Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from such Issuing BankLender, a participation, to the extent of such Bank's Lender’s Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower due in respect of drawings made under such Letter of Credit. If requested by an Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by such Issuing Bank Lender to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which that the applicable Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, such Issuing Bank Lender shall promptly notify Borrower, Borrower and each Bank other Lender of the intended date of honor of such draft and Borrower hereby promises and agrees, at Borrower's ’s option, to either (i) pay to such Issuing BankLender, by 2:00 p.m., Dallas, Texas time, on within one (1) Business Day of the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Revolving Credit Loan pursuant to the provisions of Sections Section 2.01(a) and Section 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date of such Revolving Credit Loan is to be within one (1) Business Day of the date payment is due under the Letter of Credit as specified in the Issuing Bank's Lender’s notice. If Borrower fails to timely to make such payment because such a Revolving Credit Loan cannot be made pursuant to Section 2.01(a) and/or Section 5.022.02, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the applicable Issuing Bank Lender an amount equal to its such Lender’s Pro Rata Share of the presented draft on the day such Issuing Bank Lender is required to so honor such draft. If such amount is not in fact made available to Administrative Agent the applicable Issuing Lender by such Bank Lender on such date, such Bank Lender shall pay to such Issuing BankLender, on demand made by such Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base RateRate thereafter until paid. Upon receipt by Administrative Agent the applicable Issuing Lender from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) ), the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph Paragraph (d) or elsewhere in this Agreement shall diminish Borrower's ’s obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse any Issuing Bank Lender for payment of, of any draft presented to, and duly honored by, such Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph is agreed.
(e) In order to induce the issuance of Letters of Credit by the Issuing Bank Lenders and the purchase of participations therein by the other BanksLenders, Borrower agrees with the Issuing Bank Lenders and the other Banks Lenders that neither none of Administrative Agent nor any Bank (including Agent, the Issuing Bank) Lenders or any other Lender shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by any Issuing BankLender, as provided in Subsection Section 2.09(d)) above, on account of drafts so honored under the Letters of Credit Credit, and Borrower’s unconditional obligation to reimburse the Issuing Lenders for such amounts shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (Lender, including the Issuing BankLenders) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the applicable Issuing BankLender. Borrower agrees that any action taken or omitted to be taken by the any Issuing Bank Lender under or in connection with any Letter of Credit or any related draft, document or Property property shall be binding on Borrower and shall not put the any Issuing Bank Lender under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the such Issuing BankLender (as determined by a court having competent jurisdiction in a final judgment not subject to further appeal). Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Each Issuing Bank Lender agrees to promptly to notify Borrower whenever a draft is presented under any Letter of CreditCredit issued by such Issuing Lender, but failure to so notify Borrower shall not in any way affect Borrower's ’s obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(f) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Loan Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX X of this Agreement, or if any LC Obligations shall be outstanding on the Termination Date, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under this Section 2.09(g) may be applied as Issuing Bank elects to any of the various LC Obligations; provided, however, that such amounts applied by Issuing Bank to the LC Obligations shall be (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. Thisof
Appears in 1 contract
Samples: Credit Agreement (Midstates Petroleum Company, Inc.)
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, Borrower the Company shall submit a Notice of Borrowing Request and a LC Application in writing by telecopy to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 12:00 p.m., DallasChicago, Texas Illinois time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall be signed by Borrowerthe Company, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, specify the availability for Letters of Credit under the Available Borrowing Base Base, and the $20,000,000 30,000,000 aggregate LC Obligation Obligations limitation as of the date of issuance of such Letter of Credit, Credit and the expiry date thereof which shall not be later than the earlier of (i) twelve one year after its Issuance (12or, if renewed, one year after the renewal date) months from and (ii) the date of issuance of Termination Date, unless such Letter of Credit and (ii) five (5) has been cash-collateralized with cash in an amount at least equal to 105% of the undrawn face amount thereof at least 30 days prior to before the Termination Date. If requested by the Company not later than three (3) Business Days prior to expiration of any Letter of Credit, any Letter of Credit may be renewed for the additional period specified in Section 2.1(c).
(b) Upon satisfaction of the applicable terms and conditions set forth in Article V, the Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, DallasChicago, Texas Illinois time, on the date so specified. Issuing Bank The Administrative Agent shall provide Borrower the Company and each Bank Lender with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank (A) the Uniform Customs and Borrower at Practice for Documentary Credits (2007 Revision) (the time such Letter “UCP”), International Chamber of Credit is issued, be subject to Commerce Publication No. 600 or (B) the rules of the "International Standby Practices 1998" or such later version as may be published (ISP98) (the “ISP”), International Chamber of Commerce Publication No. 590, in either case, including any subsequent revisions thereof approved by a Congress of the International Chamber of Commerce and adhered to by the Institute of International Banking Law and Practice (the "ISP 1998") Issuing Lender and shall, as to matters not governed by the ISP 1998UCP or ISP, be governed by, and construed and interpreted in accordance with, the laws of the State of TexasNew York.
(c) Upon the issuance date Issuance of each Letter of Credit, the Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing BankLender, a participation, to the extent of such Bank's Lender’s Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower the Company due in respect of drawings made under such Letter of Credit. If requested by the Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by the Issuing Bank Lender to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, the Issuing Bank Lender shall promptly notify Borrowerthe Company, the Administrative Agent and each Bank Lender of the intended date of honor of such draft and Borrower the Company hereby promises and agrees, at Borrower's the Company’s option, to either (i) pay to the Administrative Agent for the account of the Issuing BankLender, by 2:00 p.m., DallasChicago, Texas Illinois time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections 2.01(a2.1(a) and 2.02 2.2 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing Bank's Lender’s notice. If Borrower the Company fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a2.1(a) and/or or Section 5.025.2, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Administrative Agent for the benefit of the Issuing Bank Lender an amount equal to its Pro Rata Share of the presented draft on the day the Issuing Bank Lender is required to honor such draft. If such amount is not in fact made available to the Administrative Agent by such Bank Lender on such date, such Bank Lender shall pay to the Administrative Agent for the account of the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) two days following demand and thereafter until paid at the Adjusted Base Rate. Upon receipt by the Administrative Agent from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrowerthe Company, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (dSection 2.13(d) or elsewhere in this Agreement shall diminish Borrower's the Company’s obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank Lender for payment of, any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Loan as provided in this paragraph provided Section 2.13(d) shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as agreed in this paragraph agreedSection 2.13(d).
(e) In order to induce the issuance of Letters of Credit by the Issuing Bank Lender and the purchase of participations therein by the other BanksLenders, Borrower the Company agrees with the Administrative Agent, the Issuing Bank Lender and the other Banks Lenders that neither the Administrative Agent nor any Bank Lender (including the Issuing BankLender) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's the Company’s unconditional obligation to reimburse the Issuing Bank Lender through the Administrative Agent for amounts paid by the Issuing BankLender, as provided in Subsection 2.09(d)Section 2.13(d) above, on account of drafts so honored under the Letters of Credit shall not be affected by by, any circumstance, act or omission whatsoever (whether or not known to the Administrative Agent or any Bank Lender (including the Issuing BankLender)) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Administrative Agent or any Lender, including the Issuing BankLender. Borrower The Company agrees that any action taken or omitted to be taken by the Administrative Agent or any Lender (including the Issuing Bank Lender) under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower the Company and shall not put the Administrative Agent or any Lender (including the Issuing Bank Lender) under any resulting liability to Borrowerthe Company, unless such action or omission is the result of the gross negligence or willful misconduct of the Administrative Agent or any such Lender (including the Issuing BankLender). Borrower The Company hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. The Issuing Bank Lender agrees promptly to notify Borrower the Company whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower the Company shall not in any way affect Borrower's the Company’s obligations hereunder. Subject to Section 3.013.7, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's the Company’s obligations or the compensation to Issuing Bank any Lender in respect of the Letters of Credit or the cost to Issuing Bank such Lender of establishing and/or or maintaining the Letters of Credit (or any participation therein), Issuing Bank such Lender shall promptly notify Borrower the Company thereof in writing and within ten (10) Business Days after receipt by Borrower the Company of Issuing Bank's such Lender’s request (through the Administrative Agent) for reimbursement or indemnification or within thirty (30) 30 days after receipt of a notice in respect of Taxes or Other Taxes, Borrower the Company shall reimburse or indemnify Issuing Banksuch Lender, as the case may be, with respect thereto so that Issuing Bank such Lender shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower the Company to reimburse or indemnify the Issuing Bank Lenders shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes Taxes or monetary restraints, except a change in franchise taxes Taxes imposed on Issuing Bank such Lender or in tax Tax on the net income of Issuing Banksuch Lender.
(f) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all the entirety of the LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower the Company shall be obligated to pay to the Administrative Agent immediately an amount equal to the entirety of the LC Obligations. All amounts made due and payable by Borrower the Company under this Section 2.09(g2.13(g) may be applied as the Issuing Bank elects Lender and the Lenders elect to any of the various LC Obligations; provided, however, that such amounts applied by the Issuing Bank Lender and the Lenders to the LC Obligations shall be (ai) first applied to the Matured LC Obligations, and (bii) second held by the Administrative Agent in an interest bearing account for the benefit of the Issuing Bank Lender and the Lenders as LC Collateral, such LC Collateral to be held in an account with the Administrative Agent or an Affiliate thereof, until such remaining portion of the LC Obligations has either (i) become a portion of the Matured LC Obligations, at which time such LC Collateral Account until paid to the Administrative Agent shall be applied to such Matured LC Obligations, or (ii) expired undrawn, at which time an amount of such LC Collateral equal to such expired and undrawn LC Obligations, plus accrued interest thereon, shall be applied as otherwise required or permitted under Article IX. This Section 2.13(g) shall not limit or impair any rights which the Administrative Agent, the Issuing Lender or any of the Lenders may have under any other document or agreement relating to any Letter of Credit or portion of the LC Obligations, including without limitation, any LC Application.
(h) Any Issuing Lender may resign at any time by written agreement among the Company, the Administrative Agent, and such resigning Issuing Lender. The Administrative Agent shall notify the Lenders of any such resignation of an Issuing Lender. At the time any such resignation shall become effective, the Company shall pay all remaining Obligations unpaid fees accrued for the account of such resigning Issuing Lender pursuant to Section 2.8(b). After the resignation of an Issuing Lender hereunder, the resigning Issuing Lender shall remain a party hereto and shall continue to have been satisfied. Thisall the rights and obligations of an Issuing Lender under this Agreement with respect to the Letters of Credit issued by it prior to such resignation, but shall not be required to issue additional Letters of Credit.
Appears in 1 contract
Samples: Credit Agreement (Venoco, Inc.)
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of CreditCredit by any Issuing Lender, Borrower shall submit a Notice of Borrowing Request and a LC Application in writing by telecopy to such Issuing Bank Lender not later than 1:00 p.m.2:00 p.m. (Atlanta, Dallas, Texas Georgia time, ) three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall be signed by Borrower, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, specify the amount of expected availability for Letters of Credit under the Available Borrowing Base Commitment and the $20,000,000 aggregate LC Obligation limitation Letter of Credit Sub-Facility Amount as of the date of issuance of such Letter of Credit, and the expiry date thereof which shall not be later than the earlier of (i) twelve (12) 12 months from after its issuance or such longer period of time as may be agreed by the date of issuance of such Letter of Credit applicable Issuing Lender and (ii) five (5) days Business Days prior to the Termination Stated Maturity Date; provided that any Letter of Credit may provide for automatic renewal thereof for additional periods of up to 12 months or such longer period of time as may be agreed by the applicable Issuing Lender (which in no event shall extend beyond the date referred to in clause (ii) above, except to the extent cash collateralized or backstopped pursuant to arrangements reasonably acceptable to the applicable Issuing Lender).
(b) Upon satisfaction of the applicable terms and conditions set forth in Article V, the applicable Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, Dallas, Texas timebusiness at such Issuing Lender’s principal address set forth on Appendix I, on the date so specified. Each applicable Issuing Bank Lender shall provide Borrower and each Bank Administrative Agent with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by the applicable Issuing Bank Lender and Borrower at the time such Letter of Credit is issued, be subject to the rules of the "“International Standby Practices of 1998" ” or such later version as may be published by the Institute of International Banking Law and Practice (the "“ISP 1998"”) and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of TexasNew York.
(c) Upon the issuance date of each Letter of Credit, the applicable Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankRevolving Lender, and each other Bank Revolving Lender shall be deemed, without further action by any party hereto, to have purchased from such Issuing BankLender, a participation, to the extent of such Bank's Revolving Lender’s Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower due in respect of drawings made under such Letter of Credit. If requested by an Issuing BankLender, the other Banks Revolving Lenders will execute any other documents reasonably requested by such Issuing Bank Lender to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which that the applicable Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, such Issuing Bank Lender shall promptly notify Borrower, Borrower and each Bank other Revolving Lender of the intended date of honor of such draft and Borrower hereby promises and agrees, at Borrower's ’s option, to either (i) pay to such Issuing BankLender, by 2:00 p.m., Dallas, Texas time, on within one (1) Business Day of the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Revolving Credit Loan pursuant to the provisions of Sections Section 2.01(a) and Section 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date of such Revolving Credit Loan is to be within one (1) Business Day of the date payment is due under the Letter of Credit as specified in the Issuing Bank's Lender’s notice. If Borrower fails to timely to make such payment because such a Revolving Credit Loan cannot be made pursuant to Section 2.01(a) and/or Section 5.022.02, each Bank Revolving Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the applicable Issuing Bank Lender an amount equal to its such Revolving Lender’s Pro Rata Share of the presented draft on the day such Issuing Bank Lender is required to so honor such draft. If such amount is not in fact made available to Administrative Agent the applicable Issuing Lender by such Bank Revolving Lender on such date, such Bank Revolving Lender shall pay to such Issuing BankLender, on demand made by such Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base RateRate thereafter until paid. Upon receipt by Administrative Agent the applicable Issuing Lender from the Banks Revolving Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) ), the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Revolving Credit Loan as of the date of payment of such draft. Nothing in this paragraph clause (d) or elsewhere in this Agreement shall diminish Borrower's ’s obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse any Issuing Bank Lender for payment of, of any draft presented to, and duly honored by, such Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Revolving Credit Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph is agreed.
(e) In order to induce the issuance of Letters of Credit by the Issuing Bank Lenders and the purchase of participations therein by the other BanksRevolving Lenders, Borrower agrees with the Issuing Bank Lenders and the other Banks Revolving Lenders that neither none of Administrative Agent nor any Bank (including Agent, the Issuing Bank) Lenders or any other Revolving Lender shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by any Issuing BankLender, as provided in Subsection Section 2.09(d)) above, on account of drafts so honored under the Letters of Credit Credit, and Borrower’s unconditional obligation to reimburse the Issuing Lenders for such amounts shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (Revolving Lender, including the Issuing BankLenders) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the applicable Issuing BankLender. Borrower agrees that any action taken or omitted to be taken by the any Issuing Bank Lender under or in connection with any Letter of Credit or any related draft, document or Property property shall be binding on Borrower and shall not put the any Issuing Bank Lender under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the such Issuing BankLender (as determined by a court having competent jurisdiction in a final judgment not subject to further appeal). Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Each Issuing Bank Lender agrees to promptly to notify Borrower whenever a draft is presented under any Letter of CreditCredit issued by such Issuing Lender, but failure to so notify Borrower shall not in any way affect Borrower's ’s obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(f) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Loan Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX X of this Agreement, or if any LC Obligations shall be outstanding on the Termination Date, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the Cash Collateralize such LC ObligationsObligations immediately. All amounts made due and payable Cash Collateralized by Borrower under this Section 2.09(g) (and any excess amounts required to be Cash Collateralized pursuant to Section 7.18) may be applied as Issuing Bank Administrative Agent elects to any of the various LC Obligations; provided, however, that such amounts applied by Issuing Bank Administrative Agent to the LC Obligations shall be (a) first first, applied to the Matured LC Obligations, and (b) second second, held by Administrative Agent for the benefit of the Issuing Bank Lenders as LC Collateral in the LC Collateral Account until all remaining Loan Obligations have been satisfied. This
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Midstates Petroleum Company, Inc.)
Issuing the Letters of Credit. (a) Subject to the terms and conditions set forth herein, the Company may request the Issuing Lender to issue Letters of Credit for its own account, in a form reasonably acceptable to the Administrative Agent and the Issuing Lender, at any time and from time to time during the Availability Period; provided that the Company may not request the issuance, amendment, renewal or extension of Letters of Credit hereunder if the Effective Amount exceeds the Borrowing Base at such time or would exceed the Borrowing Base as a result thereof.
(b) In order to effect the issuance of a Letter of Credit, Borrower the Company shall submit a Notice of Borrowing Request and a LC Application in writing by telecopy to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 p.m., DallasChicago, Texas Illinois time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall (i) be signed by Borrowerthe Company, (ii) specify the Business Day on which such Letter of Credit is to be issued, (iii) specify the purpose for the requested Letter of Credit, (iv) specify the availability for Letters of Credit under (A) the Available Borrowing Base and (B) the $20,000,000 500,000 aggregate LC Obligation limitation limitation, as of the date of issuance of such Letter of Credit, and (v) specify the expiry date thereof thereof, which shall not be later than the earlier of (iA) twelve (12) months from the date of issuance of such Letter of Credit and (iiB) five (5) days Business Days prior to the Termination Final Maturity Date.
(bc) Upon satisfaction of the applicable terms and conditions set forth in Article V, the Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, DallasChicago, Texas Illinois time, on the date so specified. Issuing Bank The Administrative Agent shall provide Borrower the Company and each Bank Lender with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by the Issuing Bank Lender and Borrower the Company at the time such Letter of Credit is issued, be subject to the rules of the "“International Standby Practices 1998" ” or such later version as may be published by the Institute of International Banking Law and Practice (the "“ISP 1998") ”), or any successor entity, and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of TexasNew York.
(cd) Upon the issuance date of each Letter of Credit, the Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing BankLender, a participation, to the extent of such Bank's Lender’s Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower the Company due in respect of drawings made under such Letter of Credit. If requested by the Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by the Issuing Bank Lender to evidence the purchase of such participation.
(de) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, the Issuing Bank Lender shall promptly notify Borrowerthe Company, the Administrative Agent and each Bank Lender of the intended date of honor of such draft and Borrower the Company hereby promises and agrees, at Borrower's the Company’s option, to either (i) pay to the Administrative Agent for the account of the Issuing BankLender, by 2:00 p.m.11:00 a.m., DallasChicago, Texas Illinois time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections Subsection 2.01(a) and Section 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing Bank's Lender’s notice. If Borrower the Company fails timely to make such payment because a Loan cannot be made pursuant to Section Subsection 2.01(a) and/or Section 5.02, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Administrative Agent for the benefit of the Issuing Bank Lender an amount equal to its Pro Rata Share of the presented draft on the day the Issuing Bank Lender is required to honor such draft. If such amount is not in fact made available to the Administrative Agent by such Bank Lender on such date, such Bank Lender shall pay to the Administrative Agent for the account of the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) two days following demand and thereafter until paid at the Base Rate. Upon receipt by the Administrative Agent from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrowerthe Company, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (dSubsection 2.10(e) or elsewhere in this Agreement shall diminish Borrower's the Company’s obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank Lender for payment of, any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Loan as in this paragraph subsection provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph subsection agreed.
(ef) In order to induce the issuance of Letters of Credit by the Issuing Bank Lender and the purchase of participations therein by the other BanksLenders, Borrower the Company agrees with Administrative Agent, Issuing Bank Lender and the other Banks Lenders that neither Administrative Agent nor any Bank Lender (including the Issuing BankLender) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by the Issuing BankLender, as provided in Subsection 2.09(d2.10(e), on account of drafts so honored under the Letters of Credit Credit, and the Company’s unconditional obligation to reimburse the Issuing Lender through the Administrative Agent for such amounts shall not be affected by by, any circumstance, act or omission whatsoever (whether or not known to the Administrative Agent or any Bank Lender (including the Issuing BankLender) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Administrative Agent or any Lender, including the Issuing BankLender. Borrower The Company agrees that any action taken or omitted to be taken by the Administrative Agent or any Lender (including the Issuing Bank Lender) under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower the Company and shall not put the Administrative Agent or any Lender (including the Issuing Bank Lender) under any resulting liability to Borrowerthe Company, unless such action or omission is the result of the gross negligence or willful misconduct of the Administrative Agent or any such Lender (including the Issuing BankLender). Borrower The Company hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. The Issuing Bank Lender agrees promptly to notify Borrower the Company whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower the Company shall not in any way affect Borrower's the Company’s obligations hereunder. Subject to Section 3.013.07, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's the Company’s obligations or the compensation to Issuing Bank any Lender in respect of the Letters of Credit or the cost to Issuing Bank such Lender of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank such Lender shall promptly notify Borrower the Company thereof in writing and within ten (10) Business Days after receipt by Borrower the Company of Issuing Bank's such Lender’s request (through the Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower the Company shall reimburse or indemnify Issuing Banksuch Lender, as the case may be, with respect thereto so that Issuing Bank such Lender shall be in the same position as if there had been no such enforcement, adoption or interpretation, unless the Company notifies the Administrative Agent of its good faith contest to, and dispute of, the requested amount. The foregoing agreement of Borrower the Company to reimburse or indemnify the Issuing Bank Lenders shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank such Lender or in tax on the net income of Issuing Banksuch Lender.
(fg) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(gh) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this AgreementAgreement (for the purposes of this subsection, the “Matured Obligations”), then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower the Company shall be obligated to pay to the Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower the Company under this Section 2.09(gSubsection 2.10(h) may be applied as the Issuing Bank elects Lender and the Lenders elect to any of the various LC Obligations; provided, however, that such amounts applied by the Issuing Bank Lender and the Lenders to the LC Obligations shall be (ai) first applied to the Matured LC Obligations, and (bii) second held by the Administrative Agent for the benefit of the Issuing Bank Lender and the Lenders as LC Collateral in the LC Collateral Account until all remaining Matured Obligations have been satisfied. ThisThis Subsection 2.10(h) shall not limit or impair any rights which the Administrative Agent, the Issuing Lender or any of the Lenders may have under any other document or agreement relating to any Letter of Credit or LC Obligation, including without limitation, any LC Application. The Company hereby grants a security interest in and lien on the LC Collateral Account to the Administrative Agent for and on behalf of the Lenders as security for the Obligations. The Company agrees to execute and deliver from time to time such documentation as the Administrative Agent may reasonably request to further assure such security interest.
Appears in 1 contract
Issuing the Letters of Credit. (a) Subject to the terms and conditions set forth herein, Borrower may request that an Issuing Lender, and each Issuing Lender agrees, in reliance upon the agreements of the Lenders in this Section 2.09, to Issue Letters of Credit, at any time and from time to time as set forth herein. In order to effect the issuance Issuance of a Letter of Credit, Borrower shall submit a Notice of Borrowing Request and a an LC Application in writing to an Issuing Lender selected by telecopy to Issuing Bank Borrower not later than 1:00 p.m., Dallas, Texas p.m. (Central time), three (3) Business Days before the requested date of issuance Issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall be signed by Borrower, and shall specify the Business Day on which such Letter of Credit is to be issuedIssued, the purpose for the requested Letter of Credit, specify the aggregate LC Obligations then outstanding and the availability for Letters under the LC Sublimit (and in the case of a Letter of Credit under to be issued by SunTrust Bank as Issuing Lender, the Available Borrowing Base and the $20,000,000 aggregate SunTrust LC Obligation limitation Sublimit) as of the date of issuance Issuance of such Letter of CreditCredit and after giving effect thereto, the expiry date thereof (which shall not be later than the earlier of (i) twelve (12) months from the date of issuance Issuance of such Letter of Credit (or an amendment or renewal thereof by such Issuing Lender) and (ii) five twenty (520) days prior to the Termination Stated Maturity Date
(b) Upon satisfaction of the applicable terms ), and conditions set forth in Article V, Issuing Bank shall issue such Letter of Credit to the specified beneficiary not later than the close of business, Dallas, Texas time, on the date so specified. Issuing Bank shall provide Borrower and each Bank with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issued, be subject to the rules of the "International Standby Practices 1998" or such later version as may be published by the Institute of International Banking Law and Practice (the "ISP 1998") and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of Texas.
(c) Upon the issuance date of each Letter of Credit, Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each other Bank, and each other Bank shall be deemed, without further action by any party hereto, to have purchased from Issuing Bank, a participation, to the extent of such Bank's Pro Rata Share, in such Letter of Credit; provided that, the obligations thereunder and upon Borrower’s request, any Issuing Lender may, in the reimbursement obligations of Borrower due in respect of drawings made under such Letter of Credit. If requested by Issuing Bankits sole discretion, the other Banks will execute any other documents reasonably requested by Issuing Bank elect to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter Issue Letters of Credit by the beneficiary thereof which Issuing Bank determines is in compliance with the conditions for payment thereunder, Issuing Bank shall promptly notify Borrower, and each Bank of the intended that have an expiry date of honor of such draft and Borrower hereby promises and agrees, at Borrower's option, to either (i) pay to Issuing Bank, by 2:00 p.m., Dallas, Texas time, on later than the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or clause (ii) request a Loan pursuant to the provisions of Sections 2.01(a) and 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in Issuing Bank's notice. If Borrower fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a) and/or Section 5.02, each Bank shall, notwithstanding any other provision of this Agreement above (including after the occurrence and continuance of a Default or an Event of Default), make available to Issuing Bank an amount equal to its Pro Rata Share of the presented draft on the day Issuing Bank is required to honor such draft. If such amount is not in fact made available to Administrative Agent by such Bank on such date, such Bank shall pay to Issuing Bank, on demand made by Issuing Bank, in addition Stated Maturity Date) so long as Borrower provides cash collateral to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base Rate. Upon receipt by Administrative Agent from the Banks of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing Issuing Lender in this paragraph (d) or elsewhere in this Agreement shall diminish Borrower's obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse Issuing Bank for payment of, any draft presented to, and duly honored by, Issuing Bank under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed.
(e) In order to induce the issuance of Letters of Credit by Issuing Bank and the purchase of participations therein by the other Banks, Borrower agrees accordance with Issuing Bank and the other Banks that neither Administrative Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by Issuing Bank, as provided in Subsection 2.09(d), on account of drafts so honored under the Letters of Credit shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (including the Issuing Bank) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Issuing Bank. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower and shall not put the Issuing Bank under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Issuing Bank. Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Issuing Bank agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(f) In the event that any provision of a Letter of Credit Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under this Section 2.09(g) may be applied as Issuing Bank elects to any of the various LC Obligations; provided, however, that such amounts applied by Issuing Bank to the LC Obligations shall be (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. This2.09
Appears in 1 contract
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, Borrower shall submit a Borrowing Request and a LC Application in writing by telecopy to Issuing Bank not later than 1:00 p.m., Dallas, Texas time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Borrowing Request and LC Application shall be signed by Borrower, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, specify the availability for Letters of Credit under the Available Borrowing Base and the $20,000,000 10,000,000 aggregate LC Obligation limitation as of the date of issuance of such Letter of Credit, the expiry date thereof which shall not be later than the earlier of (i) twelve (12) months from the date of issuance of such Letter of Credit and (ii) five (5) days prior to the Termination DateDate and be accompanied by a current Pricing Grid Certificate.
(b) Upon satisfaction of the applicable terms and conditions set forth in Article V, Issuing Bank shall issue such Letter of Credit to the specified beneficiary not later than the close of business, Dallas, Texas time, on the date so specified. Issuing Bank shall provide Borrower and each Bank with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issued, be subject to the rules of the "“International Standby Practices 1998" ” or such later version as may be published by the Institute of International Banking Law and Practice (the "“ISP 1998"”) and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of Texas.
(c) Upon the issuance date of each Letter of Credit, Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each other Bank, and each other Bank shall be deemed, without further action by any party hereto, to have purchased from Issuing Bank, a participation, to the extent of such Bank's Pro Rata Share’s Commitment Percentage, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower due in respect of drawings made under such Letter of Credit. If requested by Issuing Bank, the other Banks will execute any other documents reasonably requested by Issuing Bank to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which Issuing Bank determines is in compliance with the conditions for payment thereunder, Issuing Bank shall promptly notify Borrower, and each Bank of the intended date of honor of such draft and Borrower hereby promises and agrees, at Borrower's ’s option, to either (i) pay to Issuing Bank, by 2:00 p.m., Dallas, Texas time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections 2.01(a) and 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in Issuing Bank's ’s notice. If Borrower fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a) and/or Section 5.02, each Bank shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to Issuing Bank an amount equal to its Pro Rata Share of the presented draft on the day Issuing Bank is required to honor such draft. If such amount is not in fact made available to Administrative Agent by such Bank on such date, such Bank shall pay to Issuing Bank, on demand made by Issuing Bank, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base Rate. Upon receipt by Administrative Agent from the Banks of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (d) or elsewhere in this Agreement shall diminish Borrower's ’s obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse Issuing Bank for payment of, any draft presented to, and duly honored by, Issuing Bank under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed.
(e) In order to induce the issuance of Letters of Credit by Issuing Bank and the purchase of participations therein by the other Banks, Borrower agrees with Issuing Bank and the other Banks that neither Administrative Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's ’s unconditional obligation to reimburse Issuing Bank for amounts paid by Issuing Bank, as provided in Subsection 2.09(d)) above, on account of drafts so honored under the Letters of Credit shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (including the Issuing Bank) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Issuing Bank. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower and shall not put the Issuing Bank under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Issuing Bank. Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Issuing Bank agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's ’s obligations hereunder. Subject to Section 3.013.03, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's ’s obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's ’s request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(f) In the event that any provision of a Letter of Credit Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under this Section 2.09(g) may be applied as Issuing Bank elects to any of the various LC Obligations; provided, however, that such amounts applied by Issuing Bank to the LC Obligations shall be (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. This
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Stroud Energy Inc)
Issuing the Letters of Credit. (a) In order to ----------------------------- effect the issuance of a Letter of Credit, the Borrower shall submit a Borrowing Letter of Credit Request and a LC Letter of Credit Application in writing by telecopy to the Agent (who shall promptly notify the Issuing Bank Bank) not later than 1:00 p.m., Dallas11:00 a.m. (Houston, Texas time, three ) two (32) Business Days before the requested date of issuance of such Letter of Credit. Each such Borrowing Letter of Credit Request and LC Letter of Credit Application shall be signed by the Borrower, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Creditand, specify the availability for Letters of Credit under the Available Borrowing Base Letter of Credit Commitment and the $20,000,000 aggregate LC Obligation limitation Commitment as of the date of issuance of such Letter of Credit; provided that, without the consent of all Banks, the expiry expiration date thereof which shall not be later than the earlier of (iI) twelve thirty (1230) months from the date of issuance of such Letter of Credit and (ii) five (5) days Business Days prior to a date which is two (2) years beyond the Revolving Credit Termination Date.
(b) Upon satisfaction of the applicable terms and conditions set forth in Article VIV, the Issuing Bank shall issue such Letter of Credit to the specified beneficiary not later than the close of business, Dallasbusiness (Houston, Texas time, ) on the date so specified. Issuing Bank The Agent shall provide the Borrower and each Bank with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, drafts presented for honor thereunder by the beneficiary in accordance with the terms thereonthereof, at sight when accompanied by the documents documents, if any, described therein and (ii) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issued, be subject to the rules Uniform Customs and Practice for Documentary Credits (1993 Revision, effective January 1, 1994), International Chamber of Commerce Publication No. 500 (and any subsequent revisions thereof approved by a Congress of the "International Standby Practices 1998" or such later version as may be published Chamber of Commerce and adhered to by the Institute of International Banking Law and Practice Issuing Bank) (the "ISP 1998UCP") ), and shall, as to matters not governed by the ISP 1998UCP, be governed by, and construed and interpreted in accordance with, the laws of the State of Texas.
(c) Upon the issuance date of each Letter of CreditCredit (other than the Existing Letters of Credit which are governed by Section 2.01(b)), the Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each other Bank, and each other Bank shall be deemed, without further action by any party hereto, to have purchased from the Issuing Bank, a participation, to the extent of such Bank's Pro Rata SharePercentage, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower due in respect of drawings made under such Letter of Credit. If requested by the Issuing Bank, the other Banks will execute any other documents reasonably requested by the Issuing Bank to evidence the purchase of such participation.
(d) Upon Subject to paragraph (i) hereof with respect to the Bonds and the Shawnee Village Bonds and subject to paragraph (l) below with respect to draws on and after the Conversion Date, upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank determines is in compliance with the conditions for payment thereunder, the Issuing Bank shall promptly notify the Borrower, the Agent and each Bank of the intended date of honor of such draft draft, and the Borrower hereby promises and agrees, at Borrower's option, agrees to either (i) pay to the Agent for the account of the Issuing BankBank upon receipt of such notice, by 2:00 p.m., Dallas9:00 A.M. (Houston, Texas time, ) on the date payment is due as specified in such notice but in any event, no earlier than the Business Day after receipt of such notice, the full amount of such draft in immediately available funds or (ii) request unless honor of such draft has been enjoined by a Loan court of competent jurisdiction pursuant to Section 5.114 of the provisions of Sections 2.01(a) Texas Business and 2.02 of this Agreement in Commerce Code prior to its payment by the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in Issuing Bank's notice). If the Borrower fails timely to make such payment because a Loan can(or is not be made pursuant required to Section 2.01(a) and/or Section 5.02make such payment), each Bank shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Agent for the benefit of the Issuing Bank an amount equal to its Pro Rata Share Percentage of the amount of the presented draft on the day the Issuing Bank is required to honor such draft. If such amount is not in fact made available to Administrative the Agent by any such Bank on such date, then such Bank shall pay to the Agent for the account of the Issuing Bank, on demand made by the Issuing Bank, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base Rate. Upon receipt by Administrative Agent from the Banks of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (d) or elsewhere in this Agreement shall diminish Borrower's obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse Issuing Bank for payment of, any draft presented to, and duly honored by, Issuing Bank under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed.
(e) In order to induce the issuance of Letters of Credit by Issuing Bank and the purchase of participations therein by the other Banks, Borrower agrees with Issuing Bank and the other Banks that neither Administrative Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by Issuing Bank, as provided in Subsection 2.09(d), on account of drafts so honored under the Letters of Credit shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (including the Issuing Bank) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Issuing Bank. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower and shall not put the Issuing Bank under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Issuing Bank. Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Issuing Bank agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(f) In the event that any provision of a Letter of Credit Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under product of (i) the average daily Effective Federal Funds Rate per annum during the period referred to in clause (iii) of this Section 2.09(gsentence times (ii) may be applied as the amount of such Bank's Pro Rata Percentage of the amount of the ----- presented draft times (iii) the number of days that elapse from the day the ----- Issuing Bank elects honors such draft to any the date on which the amount equal to such Bank's Pro Rata Percentage of the various LC Obligations; provided, however, that such amounts applied by amount of the presented draft becomes immediately available to the Issuing Bank to the LC Obligations shall be divided (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. Thisiv)
Appears in 1 contract
Samples: Credit Agreement (Weingarten Realty Investors /Tx/)
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, Borrower the Company shall submit a Notice of Borrowing Request and a LC Application in writing by telecopy to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 p.m.p.m. (New York, Dallas, Texas NY time, ) three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall be signed by Borrowerthe Company, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, specify the availability for Letters of Credit under the Available Borrowing Base Base, the Aggregate Commitment and the $20,000,000 15,000,000 aggregate LC Obligation Letter of Credit Outstandings limitation as of the date of issuance of such Letter of Credit, Credit and the expiry date thereof which shall not be later than the earlier of (i) twelve one year after its Issuance (12or, if renewed, one year after the renewal date) months from and (ii) the date of issuance of Maturity Date, unless such Letter of Credit and has been Cash Collateralized with cash in an amount at least equal to 105% of the undrawn face amount thereof at least 30 days before the Maturity Date. If requested by the Company not later than three (ii3) five (5) days Business Days prior to expiration of any Letter of Credit, any Letter of Credit may be renewed for the Termination Dateadditional period specified in Section 2.1(c).
(b) Upon satisfaction of the applicable terms and conditions set forth in Article V, the Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, DallasNew York, Texas NY time, on the date so specified. Issuing Bank The Administrative Agent shall provide Borrower the Company and each Bank Lender with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank (A) the Uniform Customs and Borrower at Practice for Documentary Credits (2007 Revision) (the time such Letter “UCP”), International Chamber of Credit is issued, be subject to Commerce Publication No. 600 or (B) the rules of the "International Standby Practices 1998" or such later version as may be published (ISP98) (the “ISP”), International Chamber of Commerce Publication No. 590, in either case, including any subsequent revisions thereof approved by a Congress of the International Chamber of Commerce and adhered to by the Institute of International Banking Law and Practice (the "ISP 1998") Issuing Lender and shall, as to matters not governed by the ISP 1998UCP or ISP, be governed by, and construed and interpreted in accordance with, the laws of the State of TexasNew York.
(c) Upon the issuance date Issuance of each Letter of Credit, the Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing BankLender, a participation, to the extent of such Bank's Lender’s Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower the Company due in respect of drawings made under such Letter of Credit. If requested by the Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by the Issuing Bank Lender to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, the Issuing Bank Lender shall promptly notify Borrowerthe Company, the Administrative Agent and each Bank Lender of the intended date of honor of such draft and Borrower the Company hereby promises and agrees, at Borrower's the Company’s option, to either (i) pay to the Administrative Agent for the account of the Issuing Bank, by 2:00 p.m., Dallas, Texas time, on the date payment is due as specified in such notice, Lender the full amount of such draft in immediately available funds funds, by (x) 3:00 p.m. (New York, NY time) on the intended date of honor of such draft, if the Company received such notice on or prior to 10:00 a.m. (New York, NY time) on the intended date of honor of such draft or (y) if the Company shall have received such notice after 10:00 a.m. (New York, NY time) on the intended date of honor of such draft, then not later 3:00 p.m. (New York, NY time) on the first Business Day immediately following such intended date of honor of such draft or (ii) request a Loan pursuant to the provisions of Sections 2.01(a2.1(a) and 2.02 2.2 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing Bank's Lender’s notice. If Borrower the Company fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a2.1(a) and/or or Section 5.025.2, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Administrative Agent for the benefit of the Issuing Bank Lender an amount equal to its Pro Rata Share of the presented draft on the day the Issuing Bank Lender is required to honor such draft. If such amount is not in fact made available to the Administrative Agent by such Bank Lender on such date, such Bank Lender shall pay to the Administrative Agent for the account of the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) two days following demand and thereafter until paid at the Alternate Base Rate. Upon receipt by the Administrative Agent from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrowerthe Company, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (dSection 2.13(d) or elsewhere in this Agreement shall diminish Borrower's the Company’s obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank Lender for payment of, any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Loan as provided in this paragraph provided Section 2.13(d) shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as agreed in this paragraph agreedSection 2.13(d).
(e) In order to induce the issuance of Letters of Credit by the Issuing Bank Lender and the purchase of participations therein by the other BanksLenders, Borrower the Company agrees with the Administrative Agent, the Issuing Bank Lender and the other Banks Lenders that neither the Administrative Agent nor any Bank Lender (including the Issuing BankLender) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's the Company’s unconditional obligation to reimburse the Issuing Bank Lender through the Administrative Agent for amounts paid by the Issuing BankLender, as provided in Subsection 2.09(d)Section 2.13(d) above, on account of drafts so honored under the Letters of Credit shall not be affected by by, any circumstance, act or omission whatsoever (whether or not known to the Administrative Agent or any Bank Lender (including the Issuing BankLender)) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Administrative Agent or any Lender, including the Issuing BankLender. Borrower The Company agrees that any action taken or omitted to be taken by the Administrative Agent or any Lender (including the Issuing Bank Lender) under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower the Company and shall not put the Administrative Agent or any Lender (including the Issuing Bank Lender) under any resulting liability to Borrowerthe Company, unless such action or omission is the result of the gross negligence or willful misconduct of the Administrative Agent or any such Lender (including the Issuing BankLender). Borrower The Company hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. The Issuing Bank Lender agrees promptly to notify Borrower the Company whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower the Company shall not in any way affect Borrower's the Company’s obligations hereunder. Subject to Section 3.013.7, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's the Company’s obligations or the compensation to Issuing Bank any Lender in respect of the Letters of Credit or the cost to Issuing Bank such Lender of establishing and/or or maintaining the Letters of Credit (or any participation therein), Issuing Bank such Lender shall promptly notify Borrower the Company thereof in writing and within ten (10) Business Days after receipt by Borrower the Company of Issuing Bank's such Lender’s request (through the Administrative Agent) for reimbursement or indemnification or within thirty (30) 30 days after receipt of a notice in respect of Taxes or Other Indemnified Taxes, Borrower the Company shall reimburse or indemnify Issuing Banksuch Lender, as the case may be, with respect thereto so that Issuing Bank such Lender shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower the Company to reimburse or indemnify the Issuing Bank Lenders shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes Taxes or monetary restraints, except a change in franchise taxes Taxes imposed on Issuing Bank such Lender or in tax Tax on the net income of Issuing Banksuch Lender.
(f) In the event that any provision of a Letter of Credit an LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations the entirety of the Letter of Credit Outstandings shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower the Company shall be obligated to pay to the Administrative Agent immediately an amount equal to the LC Obligationsentirety of the Letter of Credit Outstandings. All amounts made due and payable by Borrower the Company under this Section 2.09(g2.13(g) may be applied as the Issuing Bank elects Lender and the Lenders elect to any of the various LC ObligationsLetter of Credit Outstandings; provided, however, that such amounts applied by the Issuing Bank Lender and the Lenders to the LC Obligations Letter of Credit Outstandings shall be (ai) first applied to the Matured LC ObligationsLetter of Credit Outstandings, and (bii) second held by the Administrative Agent in an interest bearing account for the benefit of the Issuing Bank Lender and the Lenders as LC Collateral in the Collateral, such LC Collateral Account to be held in an account with the Administrative Agent or an Affiliate thereof, until such remaining portion of the Letter of Credit Outstandings has either (x) become a portion of the Matured Letter of Credit Outstandings, at which time such LC Collateral paid to the Administrative Agent shall be applied to such Matured Letter of Credit Outstandings, or (y) expired undrawn, at which time an amount of such LC Collateral equal to such expired and undrawn Letter of Credit Outstandings, plus accrued interest thereon, shall be applied as otherwise required or permitted under Article IX. This Section 2.13(g) shall not limit or impair any rights which the Administrative Agent, the Issuing Lender or any of the Lenders may have under any other document or agreement relating to any Letter of Credit or portion of the Letter of Credit Outstandings, including without limitation, any LC Application.
(h) Any Issuing Lender may resign at any time by giving thirty (30) days prior written notice to the Company, the Administrative Agent, and such resigning Issuing Lender. The Issuing Lender may be replaced at any time by written agreement among the Company, the Administrative Agent, the replaced Issuing Lender and the successor Issuing Lender. The Administrative Agent shall notify the Lenders of any such resignation or replacement of an Issuing Lender. At the time any such resignation or replacement shall become effective, the Company shall pay all remaining Obligations unpaid fees accrued for the account of such resigning or replaced Issuing Lender pursuant to Section 2.8(b). After the resignation or replacement of an Issuing Lender hereunder, the resigning Issuing Lender shall remain a party hereto and shall continue to have been satisfied. Thisall the rights and obligations of an Issuing Lender under this Agreement with respect to the Letters of Credit issued by it prior to such resignation, but shall not be required to issue additional Letters of Credit or to extend, renew or increase any existing Letter of Credit.
Appears in 1 contract
Samples: Credit Agreement (Venoco, Inc.)
Issuing the Letters of Credit. (a) Subject to the terms and conditions set forth herein, the Company may request the Issuing Lender to issue Letters of Credit for its own account or for any of its Subsidiaries, in a form reasonably acceptable to the Administrative Agent and the Issuing Lender, at any time and from time to time during the Availability Period; provided that the Company may not request the issuance, amendment, renewal or extension of Letters of Credit hereunder if (i) the Effective Amount exceeds the Commitment Amount at such time or would exceed the Commitment Amount as a result thereof, or (ii) the aggregate LC Obligation exceeds the Letter of Credit Sublimit or would exceed the Letter of Credit Sublimit as a result thereof.
(b) In order to effect request the issuance of a Letter of Credit, Borrower the Company shall submit a Notice of Revolving Credit Borrowing Request and a LC Application in writing by telecopy (or electronic communication, if arrangements for doing so have been approved by the recipient) to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 p.m., DallasHouston, Texas time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Revolving Credit Borrowing Request and LC Application shall be (i) signed by Borrowerthe Company, (ii) specify the Business Day on which such Letter of Credit is to be issued, (iii) specify the purpose for the requested Letter of Credit, (iv) specify the availability for Letters of Credit under (A) the Available Borrowing Base Commitment Amount and (B) the $20,000,000 aggregate LC Obligation limitation Letter of Credit Sublimit, as of the date of issuance of such Letter of Credit, (v) specify the expiry date thereof thereof, which shall not be later than the earlier expiration of the Availability Period, and (ivi) twelve specify such other matters as may be reasonably required by the Issuing Lender.
(12c) months Unless the Issuing Lender has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance of such Letter of Credit and (ii) five (5) days prior to the Termination Date
(b) Upon satisfaction or amendment of the applicable terms and Letter of Credit, that one or more applicable conditions set forth in Article VV shall not have been satisfied, then, subject to the terms and conditions hereof, the Issuing Bank Lender shall issue such Letter of Credit or amendment, as the case may be, to the specified beneficiary not later than beneficiary, in each case in accordance with the close of business, Dallas, Texas time, on the date so specifiedIssuing Lender’s usual and customary business practices. The Issuing Bank Lender shall provide Borrower and each Bank the Company with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of draftsshall, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by the Issuing Bank Lender and Borrower the Company at the time such Letter of Credit is issued, be subject to the rules of the "“International Standby Practices 1998" ” or such later version as may be published by the Institute of International Banking Law and Practice (the "“ISP 1998") ”), or any successor entity, and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of TexasNew York. The Issuing Lender shall have no obligation to issue any Letter of Credit if any Lender is at such time a Defaulting Lender hereunder (unless the Issuing Lender has entered into satisfactory arrangements with the Company or such Defaulting Lender to eliminate the Issuing Lender’s risk with respect to such Defaulting Lender).
(cd) Upon the issuance date of each Letter of Credit, the Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing BankLender, a participation, to the extent of such Bank's Lender’s Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower the Company due in respect of drawings made under such Letter of Credit. If requested by the Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by the Issuing Bank Lender to evidence the purchase of such participation. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Agreement in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(de) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, the Issuing Bank Lender shall promptly notify Borrowerthe Company and the Administrative Agent thereof, and each Bank of but failure to so notify the intended date of honor of such draft and Borrower Company shall not in any way affect the Company’s obligations hereunder. The Company hereby promises and agrees, at Borrower's the Company’s option, to either (i) pay to the Administrative Agent for the account of the Issuing BankLender, by 2:00 p.m., DallasHouston, Texas time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections Section 2.01(a) and Section 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing Bank's Lender’s notice. The Company will be deemed to have requested a Borrowing of Base Rate Loans to be disbursed on the intended date of honor in an amount equal to the unreimbursed drawing, but subject to the conditions set forth in Section 5.03 (other than delivery of a Notice of Borrowing). If Borrower the Company fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a) and/or Section 5.025.03, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Administrative Agent for the benefit of the Issuing Bank Lender an amount equal to its Pro Rata Share of the presented draft on the day the Issuing Bank Lender is required to honor such draft. If such amount is not in fact made available to the Administrative Agent by such Bank Lender on such date, such Bank Lender shall pay to the Administrative Agent for the account of the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) two days following demand and thereafter until paid at the Base Rate. Upon receipt by the Administrative Agent from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrowerthe Company, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (dSection 2.10(e) or elsewhere in this Agreement shall diminish Borrower's the Company’s obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank Lender for payment of, any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Loan as provided in this paragraph provided Section 2.10(e) shall not constitute a cure or waiver of the Event of Default for failure to timely provide timely such funds as required in this paragraph agreedSection 2.10(e).
(ef) In order to induce the issuance of Letters of Credit by Issuing Bank and the purchase of participations therein by the other Banks, Borrower agrees with Issuing Bank and the other Banks that neither Administrative Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional The Company’s obligation to reimburse the Issuing Bank Lender for amounts paid by Issuing Bank, as provided in Subsection 2.09(d), on account of drafts so honored under the Letters of Credit shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (1) any lack of validity or enforceability of any Letter of Credit, any LC Application, or any term or provision therein, (2) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (3) payment by the Issuing Lender under a Letter of Credit issued by the Issuing Lender against presentation of a draft or other document that does not be affected by comply with the terms of such Letter of Credit or any circumstanceLC Application, act or omission whatsoever (4) any other event or circumstance whatsoever, whether or not known similar to any of the foregoing, that might, but for the provisions of this Section 2.10(f), constitute a legal or equitable discharge of, or provide a right of setoff against, the Company’s obligations hereunder. Neither the Administrative Agent or any Bank (including Agent, the Lenders nor the Issuing Bank) other than a circumstanceLender, act nor any of their Related Parties shall have any liability or omission resulting from the gross negligence or willful misconduct responsibility by reason of the Issuing Bank. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank under or in connection with the issuance or transfer of any Letter of Credit or any related payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or Property shall be binding on Borrower and any consequence arising from causes beyond the control of the Issuing Lender; provided that the foregoing shall not put be construed to excuse the Issuing Bank under any resulting Lender from liability to Borrowerthe Company to the extent of any direct damages (as opposed to consequential damages, unless such action or omission is claims in respect of which are hereby waived by the result Company to the extent permitted by applicable law) suffered by the Company that are caused by the Issuing Lender’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Issuing BankLender (as finally determined by a court of competent jurisdiction), such Issuing Lender shall be deemed to have exercised all requisite care in each such determination. Borrower In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Lender that issued such Letter of Credit may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit. The Company hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Issuing Bank agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(fg) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(gh) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower the Company shall be obligated to pay to the Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower the Company under this Section 2.09(gSubsection 2.10(h) may be applied as the Issuing Bank Lender elects to any of the various LC Obligations; provided, however, that such amounts applied by Issuing Bank to the LC Obligations shall be (ai) first first, applied to the Matured LC ObligationsObligation, and (bii) second second, held by the Administrative Agent for the benefit of the Issuing Bank Lender and the Lenders as LC Collateral in the LC Collateral Account until all remaining LC Obligations have been satisfied. This
Appears in 1 contract
Issuing the Letters of Credit. (a) Subject to the terms and conditions set forth herein, the Company may request the Issuing Lender to issue Letters of Credit for its own account or for any of its Subsidiaries, in a form reasonably acceptable to the Administrative Agent and the Issuing Lender, at any time and from time to time during the Availability Period; provided that the Company may not request the issuance, amendment, renewal or extension of Letters of Credit hereunder if the Effective Amount exceeds the Borrowing Base at such time or would exceed the Borrowing Base as a result thereof.
(b) In order to effect the issuance of a Letter of Credit, Borrower the Company shall submit a Notice of Revolving Credit Borrowing Request and a LC Application in writing by telecopy to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 p.m., DallasHouston, Texas time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Revolving Credit Borrowing Request and LC Application shall be (i) signed by Borrowerthe Company, (ii) specify the Business Day on which such Letter of Credit is to be issued, (iii) specify the purpose for the requested Letter of Credit, (iv) specify the availability for Letters of Credit under (A) the Available Borrowing Base and (B) the $20,000,000 50,000,000 aggregate LC Obligation limitation limitation, as of the date of issuance of such Letter of Credit, (v) specify the expiry date thereof thereof, which shall not be later than the earlier of (iA) twelve (12) months from the date of issuance of such Letter of Credit and (iiB) five seven (57) days Business Days prior to the Termination Date, and (vi) specify such other matters as may be required by the Issuing Lender.
(bc) Upon satisfaction Unless the Issuing Lender has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable terms and Letter of Credit, that one or more applicable conditions set forth in Article VV shall not been be satisfied, then, subject to the terms and conditions hereof, the Issuing Bank Lender shall issue such Letter of Credit or amendment, as the case may be, to the specified beneficiary not later than beneficiary, in each case in accordance with the close of business, Dallas, Texas time, on the date so specifiedIssuing Lender’s usual and customary business practices. The Issuing Bank shall provide Borrower and each Bank the Company with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of draftsshall, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by the Issuing Bank Lender and Borrower the Company at the time such Letter of Credit is issued, be subject to the rules of the "“International Standby Practices 1998" ” or such later version as may be published by the Institute of International Banking Law and Practice (the "“ISP 1998") ”), or any successor entity, and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of Texas.
(cd) Upon the issuance date of each Letter of Credit, the Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing BankLender, a participation, to the extent of such Bank's Lender’s Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower the Company due in respect of drawings made under such Letter of Credit. If requested by the Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by the Issuing Bank Lender to evidence the purchase of such participation. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Agreement in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default, the existence of a Borrowing Base Deficiency or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(de) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, the Issuing Bank Lender shall promptly notify Borrowerthe Company and the Administrative Agent thereof, and each Bank of but failure to so notify the intended date of honor of such draft and Borrower Company shall not in any way affect the Company’s obligations hereunder. The Company hereby promises and agrees, at Borrower's the Company’s option, to either (i) pay to the Administrative Agent for the account of the Issuing BankLender, by 2:00 p.m., DallasHouston, Texas time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections Section 2.01(a) and Section 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing Bank's Lender’s notice. If Borrower the Company fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a) and/or Section 5.02, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Administrative Agent for the benefit of the Issuing Bank Lender an amount equal to its Pro Rata Share of the presented draft on the day the Issuing Bank Lender is required to honor such draft. If such amount is not in fact made available to the Administrative Agent by such Bank Lender on such date, such Bank Lender shall pay to the Administrative Agent for the account of the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) two days following demand and thereafter until paid at the Base Rate. Upon receipt by the Administrative Agent from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrowerthe Company, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (dSection 2.10(e) or elsewhere in this Agreement shall diminish Borrower's the Company’s obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank Lender for payment of, any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Loan as in this paragraph Section 2.10(e) provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph Section 2.10(e) agreed.
(ef) In order to induce the issuance of Letters of Credit by Issuing Bank and the purchase of participations therein by the other Banks, Borrower agrees with Issuing Bank and the other Banks that neither Administrative Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional The Company’s obligation to reimburse the Issuing Bank Lender for amounts paid by Issuing Bank, as provided in Subsection 2.09(d), on account of drafts so honored under the Letters of Credit shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (1) any lack of validity or enforceability of any Letter of Credit, any LC Application, or any term or provision therein, (2) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (3) payment by the Issuing Lender under a Letter of Credit issued by the Issuing Lender against presentation of a draft or other document that does not be affected by comply with the terms of such Letter of Credit or any circumstanceLC Application, act or omission whatsoever (4) any other event or circumstance whatsoever, whether or not known similar to any of the foregoing, that might, but for the provisions of this Section 2.10(f), constitute a legal or equitable discharge of, or provide a right of setoff against, the Company’s obligations hereunder. Neither the Administrative Agent or any Bank (including Agent, the Lenders nor the Issuing Bank) other than a circumstanceLender, act nor any of their Related Parties shall have any liability or omission resulting from the gross negligence or willful misconduct responsibility by reason of the Issuing Bank. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank under or in connection with the issuance or transfer of any Letter of Credit or any related payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or Property shall be binding on Borrower and any consequence arising from causes beyond the control of the Issuing Lender; provided that the foregoing shall not put be construed to excuse the Issuing Bank under any resulting Lender from liability to Borrowerthe Company to the extent of any direct damages (as opposed to consequential damages, unless such action or omission is claims in respect of which are hereby waived by the result Company to the extent permitted by applicable law) suffered by the Company that are caused by the Issuing Lender’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Issuing BankLender (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised all requisite care in each such determination. Borrower In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Lender that issued such Letter of Credit may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit. The Company hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Issuing Bank agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(fg) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(gh) If (i) any Event of Default shall occur and be continuing and the ObligationsCompany receives notice from the Administrative Agent demanding the deposit of cash collateral pursuant to this Section 2.10(h), or (ii) the Company is required to pay to the Administrative Agent the excess attributable to an LC Obligation in connection with any part thereof, are declared or otherwise become immediately due and payable prepayment pursuant to Article IX of this AgreementSection 2.05, then all the Company shall deposit, in the LC Obligations Collateral Account, an amount in cash equal to, in the case of an Event of Default, the LC Obligation, and in the case of a payment required by Section 2.05, the amount of such excess as provided in Section 2.05, as of such date plus any accrued and unpaid interest thereon; and reference is further made to Section 9.02 which provides that the obligation to deposit cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of certain Events of Default as therein described. The Company hereby grants to the Administrative Agent, for the benefit of the Issuing Lender and the Lenders, to secure the Obligations, an exclusive first priority and continuing perfected security interest in and Lien on such account and all cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in such account, all deposits or wire transfers made thereto, any and all investments purchased with funds deposited in such account, all interest, dividends, cash, instruments, financial assets and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing, and all proceeds, products, accessions, rents, profits, income and benefits therefrom, and any substitutions and replacements therefor. The Company’s obligation to deposit amounts pursuant to this Section 2.10(h) shall be absolute and unconditional, without regard for actual drawings to whether any beneficiary of any such Letter of Credit has attempted to draw down all or payments on a portion of such amount under the Letters terms of a Letter of Credit, and Borrower and, to the fullest extent permitted by applicable law, shall not be subject to any defense or be affected by a right of set-off, counterclaim or recoupment which the Company or any of its Subsidiaries may now or hereafter have against any such beneficiary, the Issuing Lender, the Administrative Agent, the Lenders or any other Person for any reason whatsoever. Such deposit shall be obligated held as collateral securing the payment and performance of the Company’s and any Guarantor’s obligations under this Agreement and the other Loan Documents. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Monies in such account shall be applied by the Administrative Agent to reimburse the Issuing Lender for payments under Letters of Credit for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Company for the LC Obligation at such time or, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Company and the Guarantors, if any, under this Agreement or the other Loan Documents. If the Company is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, and the Company is not otherwise required to pay to the Administrative Agent immediately the excess attributable to an LC Obligation in connection with any prepayment pursuant to Section 2.05, then such amount equal (to the LC Obligations. All amounts made due and payable by Borrower under this Section 2.09(g) may be extent not applied as Issuing Bank elects to any of the various LC Obligations; provided, however, that such amounts applied by Issuing Bank aforesaid) shall be returned to the LC Obligations shall be (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until Company within three Business Days after all remaining Obligations Events of Default have been satisfied. Thiscured or waived.
Appears in 1 contract
Issuing the Letters of Credit. (a) In order to effect the ----------------------------- issuance of a Letter of Credit, Borrower shall submit a Borrowing Request and a LC Letter of Credit Application in writing by telecopy to the Agent (who shall promptly notify the Issuing Bank Bank) not later than 1:00 p.m.12:00 noon, DallasHouston, Texas time, three two (32) Business Days before the requested date of issuance of such Letter of Credit. Each such Borrowing Request and LC Letter of Credit Application shall (i) be signed by Borrower, (ii) specify the Business Day on which such Letter of Credit is to be issued, (iii) specify the purpose for the requested Letter of CreditIssuing Bank, and (iv) specify the availability for Letters of Credit under the Available Borrowing Base Letter of Credit Commitment and the $20,000,000 aggregate LC Obligation limitation Total Commitment as of the date of issuance of such Letter of Credit, Credit and the expiry expiration date thereof which shall not be later than the earlier of (iA) twelve (12) months from the date of issuance of such Letter of Credit and (iiB) five (5) days prior to the Termination Maturity Date; provided, however, that Borrower may request evergreen Letters of -------- ------- Credit that automatically renew for additional one year periods so long as the final expiry date thereof is on or before the Maturity Date.
(b) Upon satisfaction of the applicable terms and conditions set forth in Article VIII, the Issuing Bank shall issue such Letter of Credit to the specified ----------- beneficiary not later than the close of business, DallasHouston, Texas time, on the date so specified. Issuing Bank The Agent shall provide Borrower and each Bank with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (iiII) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issuedBE SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), be subject to the rules of the INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500, (AND ANY SUBSEQUENT REVISIONS THEREOF APPROVED BY A CONGRESS OF THE INTERNATIONAL CHAMBER OF COMMERCE) (THE "International Standby Practices 1998" or such later version as may be published by the Institute of International Banking Law and Practice (the "ISP 1998UCP") and shallAND SHALL, as to matters not governed by the ISP 1998AS TO MATTERS NOT GOVERNED BY THE UCP, be governed byBE GOVERNED BY, and construed and interpreted in accordance withAND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, the laws of the State of TexasTHE LAWS OF THE STATE OF TEXAS.
(c) Upon the issuance date of each Letter of Credit, the Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each other Bank, and each other Bank shall be deemed, without further action by any party hereto, to have purchased from the Issuing Bank, a participation, to the extent of such Bank's Pro Rata ShareCommitment Percentage, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower due in respect of drawings made under such Letter of Credit. If requested by the Issuing Bank, the other Banks will execute any other documents reasonably requested by the Issuing Bank to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank determines is in compliance with the conditions for payment thereunder, the Issuing Bank shall promptly notify Borrower, the Agent and each Bank of the intended date of honor of such draft and Borrower hereby promises and agrees, at Borrower's option, to either (i) pay to Issuing Bank, by 2:00 p.m., Dallas, Texas time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections 2.01(a) and 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in Issuing Bank's notice. If Borrower fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a) and/or Section 5.02, each Bank shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to Issuing Bank an amount equal to its Pro Rata Share of the presented draft on the day Issuing Bank is required to honor such draft. If such amount is not in fact made available to Administrative Agent by such Bank on such date, such Bank shall pay to Issuing Bank, on demand made by Issuing Bank, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base Rate. Upon receipt by Administrative Agent from the Banks of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (d) or elsewhere in this Agreement shall diminish Borrower's obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse Issuing Bank for payment of, any draft presented to, and duly honored by, Issuing Bank under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed.
(e) In order to induce the issuance of Letters of Credit by Issuing Bank and the purchase of participations therein by the other Banks, Borrower agrees with Issuing Bank and the other Banks that neither Administrative Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by Issuing Bank, as provided in Subsection 2.09(d), on account of drafts so honored under the Letters of Credit shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (including the Issuing Bank) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Issuing Bank. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower and shall not put the Issuing Bank under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Issuing Bank. Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Issuing Bank agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(f) In the event that any provision of a Letter of Credit Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under this Section 2.09(g) may be applied as Issuing Bank elects to any of the various LC Obligations; provided, however, that such amounts applied by Issuing Bank to the LC Obligations shall be (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. Thishonor
Appears in 1 contract
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, Borrower shall submit a Borrowing Request and a LC Letter of Credit Application in writing by telecopy to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 p.m.12:00 noon, Dallas, Texas time, three (3) two Business Days before the requested date of issuance of such Letter of Credit. Each such Borrowing Request and LC Letter of Credit Application shall (i) be signed by Borrower, (ii) specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, and (iii) specify the availability for Letters of Credit under the Available Borrowing Base Letter of Credit Commitment and the $20,000,000 aggregate LC Obligation limitation Available Commitment as of the date of issuance of such Letter of Credit, Credit and the expiry expiration date thereof of such Letter of Credit which shall not be later than the earlier of (iA) twelve (12) 12 months from the date of issuance of such Letter of Credit and (iiB) five (5) days prior to the Termination Maturity Date; provided that Borrower may request evergreen Letters of Credit that automatically renew for additional one year periods so long as the final expiration date thereof is on or before the Maturity Date.
(b) Upon satisfaction of the applicable terms and conditions set forth in Article VIII, the Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, Dallas, Texas time, on the date so specified. Issuing Bank The Administrative Agent shall provide Borrower and each Bank with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereonthereof, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by the Issuing Bank Lender and Borrower at the time when such Letter of Credit is issued, be subject to the rules of the "International Standby Practices 1998" or such later version as may be published by the Institute of International Banking Law and & Practice (or such later version as may be in effect at the "ISP 1998") and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws time of the State of Texasissuance).
(c) Upon the issuance date of each Letter of Credit, the Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing BankLender, a participation, to the extent of such BankLender's Pro Rata ShareCommitment Percentage, in such Letter of Credit, Credit and the obligations thereunder and in the reimbursement obligations of Borrower due in respect of drawings made under such Letter of CreditCredit Liabilities thereunder. If requested by the Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by the Issuing Bank Lender to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, the Issuing Bank Lender shall promptly notify Borrower, Borrower and each Bank the Administrative Agent of the intended date of honor of such draft and Borrower hereby promises and agrees, at Borrower's option, to either (i) pay to the Administrative Agent for the account of the Issuing BankLender, by 2:00 1:00 p.m., Dallas, Texas time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections Section 2.01(a) and 2.02 of this Agreement Section 2.03 in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing BankLender's notice. If Borrower fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a) and/or and Section 5.023.02, each Bank Lender shall, notwithstanding any other provision of this Credit Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Administrative Agent for the benefit of the Issuing Bank Lender an amount equal to its Pro Rata Share Commitment Percentage of the presented draft on the day the Issuing Bank is required to honor Lender honors such draft. If such amount is not in fact made available to the Administrative Agent by such Bank Lender on such date, such Bank Lender shall pay to the Administrative Agent for the account of the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon on such amount at the Federal Funds Rate for each day that such amount is not so made available to the first three (3Administrative Agent by such Lender. In the event that a Loan cannot be made pursuant to the provisions of Section 2.01(a) days following demand and thereafter until paid at Section 3.02, and Borrower fails to pay directly the Base Rate. Upon amount of the draft, then upon receipt by the Administrative Agent from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Credit Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall shall, automatically and without any action by Borrower, be deemed to have been a Base Rate Loan Borrowing as of the date of payment of such draft. Nothing in this paragraph (dSection 2.05(d) or elsewhere in this Credit Agreement shall diminish Borrower's obligation under this Credit Agreement to provide the funds for the payment of, or on demand to reimburse Issuing Bank for payment of, of any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of CreditCredit by either obtaining a Loan pursuant to the provisions of Section 2.01(a) and Section 3.02 or paying directly to the Administrative Agent for the benefit of the Issuing Lender and the other Lenders the amount of the draft, and the automatic funding of a Loan as provided in this paragraph provided the immediately preceding sentence shall not constitute a cure or waiver of the Event of Default for failure to timely provide timely such funds as in this paragraph agreedfunds.
(e) In order to induce the issuance of Letters of Credit by the Issuing Bank Lender and the purchase of participations therein by the other BanksLenders, Borrower agrees with the Administrative Agent, the Issuing Bank Lender and the other Banks Lenders that neither the Administrative Agent nor any Bank Lender (including the Issuing BankLender) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse the Issuing Bank Lender through the Administrative Agent for amounts paid by such Issuing BankLender, as provided in Subsection 2.09(dSection 2.05(d), on account of drafts so honored under the Letters of Credit shall not be affected by by, any circumstance, act or omission whatsoever (whether or not known to the Administrative Agent or any Bank Lender (including the Issuing Bank) Lender)), other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Issuing BankLender in determining whether any draw under any Letter of Credit is in compliance with the conditions for the payment thereof. Borrower agrees that any action taken or omitted to be taken by the Administrative Agent or any Lender (including the Issuing Bank Lender) under or in connection with any Letter of Credit or any related draft, document or Property property shall be binding on Borrower and shall not put the Administrative Agent or any Lender (including the Issuing Bank Lender) under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Administrative Agent or such Lender (including the Issuing BankLender). Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. The Issuing Bank Lender agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's obligations hereunder. Subject to Section 3.012.21, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to the Issuing Bank Lender or any Lender in respect of the Letters of Credit or the cost to the Issuing Bank Lender or any Lender of establishing and/or maintaining the Letters of Credit (or any participation therein), the Issuing Bank Lender or such Lender shall promptly notify Borrower thereof in writing in accordance with Section 2.15(c) or Section 2.19, and within ten (10) Business Days after receipt by Borrower of the Issuing BankLender's or such Lender's request (through the Administrative Agent) for reimbursement or indemnification or within thirty (30) 30 days after receipt of a notice in respect of Withholding Taxes under Section 2.19, accompanied by a certificate from the Issuing Lender or Other Taxessuch Lender setting forth in reasonable detail the basis for such reimbursement or indemnification and the calculation thereof in accordance with Section 2.15(c) or Section 2.19, Borrower shall reimburse or indemnify the Issuing BankLender or such Lender, as the case may be, with respect thereto so that the Issuing Bank Lender or such Lender shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank Lender and each Lender shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on the Issuing Bank Lender or such Lender or in tax on the net income of the Issuing BankLender or such Lender; provided that Borrower shall not be required to compensate a Lender or the Issuing Lender pursuant to this Section 2.05(e) for any of the foregoing items incurred more than 180 days (plus any period of retroactivity in the application of such items that is greater than 180 days) prior to the date that such Lender or the Issuing Lender, as the case may be, notifies Borrower of the imposition or change giving rise thereto and of such Lender's or the Issuing Lender's intention to claim compensation therefor.
(f) In the event that any provision of a Letter of Credit Application is inconsistent with, or in conflict of, any provision of this Credit Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Credit Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under this Section 2.09(g) may be applied as Issuing Bank elects to any of the various LC Obligations; provided, however, that such amounts applied by Issuing Bank to the LC Obligations shall be (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. This
Appears in 1 contract
Samples: Revolving Credit Agreement (Barrett Resources Corp)
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, Borrower the Company shall submit a Notice of Borrowing Request and a LC Application in writing by telecopy to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 12:00 p.m., DallasChicago, Texas Illinois time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall be signed by Borrowerthe Company, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, specify the availability for Letters of Credit under the Available Borrowing Base Base, and the $20,000,000 aggregate LC Obligation Obligations limitation as of the date of issuance of such Letter of Credit, Credit and the expiry date thereof which shall not be later than the earlier of (i) twelve (12) months from the date of issuance Issuance of such Letter of Credit and (ii) five (5) days the seventh Business Day prior to the Termination Date; provided, however, that any letter of Credit may provide for the automatic renewal thereof for additional one year periods, which in no event shall extend beyond the date referred to in the foregoing clause (ii). If requested by the Company not later than three Business Days prior to expiration of any Letter of Credit, any Letter of Credit may be renewed for the additional period specified in Section 2.1(c).
(b) Upon satisfaction of the applicable terms and conditions set forth in Article V, the Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, DallasChicago, Texas Illinois time, on the date so specified. Issuing Bank The Administrative Agent shall provide Borrower the Company and each Bank Lender with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issued, be subject to the rules Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500 (and any subsequent revisions thereof approved by a Congress of the "International Standby Practices 1998" or such later version as may be published by the Institute Chamber of International Banking Law and Practice Commerce) (the "ISP 1998"“UCP”) and shall, as to matters not governed by the ISP 1998UCP, be governed by, and construed and interpreted in accordance with, the laws of the State of TexasNew York.
(c) Upon the issuance date Issuance of each Letter of Credit, the Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing BankLender, a participation, to the extent of such Bank's Lender’s Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower the Company due in respect of drawings made under such Letter of Credit. If requested by the Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by the Issuing Bank Lender to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, the Issuing Bank Lender shall promptly notify Borrowerthe Company, the Administrative Agent and each Bank Lender of the intended date of honor of such draft and Borrower the Company hereby promises and agrees, at Borrower's the Company’s option, to either (i) pay to the Administrative Agent for the account of the Issuing BankLender, by 2:00 p.m., DallasChicago, Texas Illinois time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections 2.01(a2.1(a) and 2.02 2.2 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing Bank's Lender’s notice. If Borrower the Company fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a2.1(a) and/or or Section 5.025.3, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Administrative Agent for the benefit of the Issuing Bank Lender an amount equal to its Pro Rata Share of the presented draft on the day the Issuing Bank Lender is required to honor such draft. If such amount is not in fact made available to the Administrative Agent by such Bank Lender on such date, such Bank Lender shall pay to the Administrative Agent for the account of the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) two days following demand and thereafter until paid at the Adjusted Base Rate. Upon receipt by the Administrative Agent from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrowerthe Company, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (dSection 2.13(d) or elsewhere in this Agreement shall diminish Borrower's the Company’s obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank Lender for payment of, any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Loan as provided in this paragraph provided Section 2.13(d) shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as agreed in this paragraph agreedSection 2.13(d).
(e) In order to induce the issuance of Letters of Credit by the Issuing Bank Lender and the purchase of participations therein by the other BanksLenders, Borrower the Company agrees with the Administrative Agent, the Issuing Bank Lender and the other Banks Lenders that neither the Administrative Agent nor any Bank Lender (including the Issuing BankLender) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's the Company’s unconditional obligation to reimburse the Issuing Bank Lender through the Administrative Agent for amounts paid by the Issuing BankLender, as provided in Subsection 2.09(d)Section 2.13(d) above, on account of drafts so honored under the Letters of Credit shall not be affected by by, any circumstance, act or omission whatsoever (whether or not known to the Administrative Agent or any Bank Lender (including the Issuing BankLender)) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Administrative Agent or any Lender, including the Issuing BankLender. Borrower The Company agrees that any action taken or omitted to be taken by the Administrative Agent or any Lender (including the Issuing Bank Lender) under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower the Company and shall not put the Administrative Agent or any Lender (including the Issuing Bank Lender) under any resulting liability to Borrowerthe Company, unless such action or omission is the result of the gross negligence or willful misconduct of the Administrative Agent or any such Lender (including the Issuing BankLender). Borrower The Company hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. The Issuing Bank Lender agrees promptly to notify Borrower the Company whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower the Company shall not in any way affect Borrower's the Company’s obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(f) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, with any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all the entirety of the LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower the Company shall be obligated to pay to the Administrative Agent immediately an amount equal to the entirety of the LC Obligations. All amounts made due and payable by Borrower the Company under this Section 2.09(g2.13(g) may be applied as the Issuing Bank elects Lender and the Lenders elect to any of the various LC Obligations; provided, however, that such amounts applied by the Issuing Bank Lender and the Lenders to the LC Obligations shall be (ai) first applied to the Matured LC Obligations, and (bii) second held by the Administrative Agent in an interest bearing account for the benefit of the Issuing Bank Lender and the Lenders as LC Collateral in the Collateral, such LC Collateral Account to be held in an account with the Administrative Agent or an Affiliate thereof, until all any such remaining LC Obligation has either (i) become a Matured LC Obligation, at which time such LC Collateral paid to the Administrative Agent shall be applied to such Matured LC Obligation, or (ii) expired undrawn, at which time an amount of such LC Collateral equal to such expired and undrawn LC Obligation, plus accrued interest thereon, shall be applied toward the satisfaction of any Obligations then remaining due and payable in such order as the Administrative Agent may select. This Section 2.13(g) shall not limit or impair any rights that the Administrative Agent, the Issuing Lender or any of the Lenders may have been satisfied. Thisunder any other document or agreement relating to any Letter of Credit or LC Obligations, including without limitation, any LC Application.
Appears in 1 contract
Issuing the Letters of Credit. (a) Subject to the terms and conditions set forth herein, the Company may request the Issuing Lender to issue Letters of Credit for its own account or for any of its Subsidiaries, in a form reasonably acceptable to the Administrative Agent and the Issuing Lender, at any time and from time to time during the Availability Period; provided that the Company may not request the issuance, amendment, renewal or extension of Letters of Credit hereunder if the Effective Amount exceeds the Borrowing Base at such time or would exceed the Borrowing Base as a result thereof.
(b) In order to effect the issuance of a Letter of Credit, Borrower the Company shall submit a Notice of Borrowing Request and a LC Application in writing by telecopy to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 p.m., DallasHouston, Texas time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall be (i) signed by Borrowerthe Company, (ii) specify the Business Day on which such Letter of Credit is to be issued, (iii) specify the purpose for the requested Letter of Credit, (iv) specify the availability for Letters of Credit under (A) the Available Borrowing Base and (B) the $20,000,000 5,000,000 aggregate LC Obligation limitation limitation, as of the date of issuance of such Letter of Credit, and (v) specify the expiry date thereof thereof, which shall not be later than the earlier of (iA) twelve (12) months from the date of issuance of such Letter of Credit and (iiB) five seven (57) days Business Days prior to the Termination Date.
(bc) Upon satisfaction of the applicable terms and conditions set forth in Article V, the Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, DallasHouston, Texas time, on the date so specified. Issuing Bank The Administrative Agent shall provide Borrower the Company and each Bank Lender with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by the Issuing Bank Lender and Borrower the Company at the time such Letter of Credit is issued, be subject to the rules of the "International Standby Practices 1998" or such later version as may be published by the Institute of International Banking Law and Practice (the "ISP 1998") ), or any successor entity, and shall, as to matters not governed by the ISP 1998, be governed by, and construed and interpreted in accordance with, the laws of the State of Texas.
(cd) Upon the issuance date of each Letter of Credit, the Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing BankLender, a participation, to the extent of such BankLender's Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower the Company due in respect of drawings made under such Letter of Credit. If requested by the Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by the Issuing Bank Lender to evidence the purchase of such participation.
(de) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, the Issuing Bank Lender shall promptly notify Borrowerthe Company, the Administrative Agent and each Bank Lender of the intended date of honor of such draft and Borrower the Company hereby promises and agrees, at Borrowerthe Company's option, to either (i) pay to the Administrative Agent for the account of the Issuing BankLender, by 2:00 p.m., DallasHouston, Texas time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections Subsection 2.01(a) and Section 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing BankLender's notice. If Borrower the Company fails timely to make such payment because a Loan cannot be made pursuant to Section Subsection 2.01(a) and/or Section 5.02, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Administrative Agent for the benefit of the Issuing Bank Lender an amount equal to its Pro Rata Share of the presented draft on the day the Issuing Bank Lender is required to honor such draft. If such amount is not in fact made available to the Administrative Agent by such Bank Lender on such date, such Bank Lender shall pay to the Administrative Agent for the account of the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) two days following demand and thereafter until paid at the Base Rate. Upon receipt by the Administrative Agent from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrowerthe Company, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (dSubsection 2.05(d) or elsewhere in this Agreement shall diminish Borrowerthe Company's obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank Lender for payment of, any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed.
(ef) In order to induce the issuance of Letters of Credit by the Issuing Bank Lender and the purchase of participations therein by the other BanksLenders, Borrower the Company agrees with Administrative Agent, Issuing Bank Lender and the other Banks Lenders that neither Administrative Agent nor any Bank Lender (including the Issuing BankLender) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by Issuing BankLender, as provided in Subsection 2.09(d2.10(e), on account of drafts so honored under the Letters of Credit Credit, and the Company's unconditional obligation to reimburse the Issuing Lender through the Administrative Agent for such amounts shall not be affected by by, any circumstance, act or omission whatsoever (whether or not known to the Administrative Agent or any Bank Lender (including the Issuing BankLender) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Administrative Agent or any Lender, including the Issuing BankLender. Borrower The Company agrees that any action taken or omitted to be taken by the Administrative Agent or any Lender (including the Issuing Bank Lender) under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower the Company and shall not put the Administrative Agent or any Lender (including the Issuing Bank Lender) under any resulting liability to Borrowerthe Company, unless such action or omission is the result of the gross negligence or willful misconduct of the Administrative Agent or any such Lender (including the Issuing BankLender). Borrower The Company hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. The Issuing Bank Lender agrees promptly to notify Borrower the Company whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower the Company shall not in any way affect Borrowerthe Company's obligations hereunder. Subject to Section 3.013.07, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrowerthe Company's obligations or the compensation to Issuing Bank any Lender in respect of the Letters of Credit or the cost to Issuing Bank such Lender of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank such Lender shall promptly notify Borrower the Company thereof in writing and within ten (10) Business Days after receipt by Borrower the Company of Issuing Banksuch Lender's request (through the Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower the Company shall reimburse or indemnify Issuing Banksuch Lender, as the case may be, with respect thereto so that Issuing Bank such Lender shall be in the same position as if there had been no such enforcement, adoption or interpretation, unless the Company notifies the Administrative Agent of its good faith contest to, and dispute of, the requested amount. The foregoing agreement of Borrower the Company to reimburse or indemnify the Issuing Bank Lenders shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank such Lender or in tax on the net income of Issuing Banksuch Lender.
(fg) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(gh) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this AgreementAgreement (for the purposes of this paragraph, the "Matured Obligations"), then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower the Company shall be obligated to pay to the Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower the Company under this Section 2.09(gSubsection 2.10(h) may be applied as the Issuing Bank elects Lender and the Lenders elect to any of the various LC Obligations; provided, however, that such amounts applied by the Issuing Bank Lender and the Lenders to the LC Obligations shall be (ai) first applied to the Matured LC Obligations, and (bii) second held by the Administrative Agent for the benefit of the Issuing Bank Lender and the Lenders as LC Collateral in the LC Collateral Account until all remaining Matured Obligations have been satisfied. This
Appears in 1 contract
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, the Borrower shall submit a Borrowing Request and a LC Letter of Credit Application in writing by telecopy to the Agent (who shall promptly notify the Issuing Bank Bank) not later than 1:00 p.m.11:00 a.m., DallasNew York, Texas New York time, three two (32) Business Days before the requested date of issuance of such Letter of Credit. Each such Borrowing Request and LC Letter of Credit Application shall be signed by the Borrower, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Creditand, specify the availability for Letters of Credit under the Available Letter of Credit Commitment and the Borrowing Base and the $20,000,000 aggregate LC Obligation limitation as of the date of issuance of such Letter of Credit, Credit and the expiry date thereof which shall not be later than the earlier of (i) twelve (12) months from the date of issuance of such Letter of Credit and (ii) five (5) days prior to the Termination Maturity Date.
(b) Upon satisfaction of the applicable terms and conditions set forth in Article VIV, the Issuing Bank shall issue such Letter of Credit to the specified beneficiary not later than the close of business, DallasNew York, Texas New York time, on the date so specified. Issuing Bank The Agent shall provide the Borrower and each Bank with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (iiII) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issuedBE SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), be subject to the rules of the INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500, (AND ANY SUBSEQUENT REVISIONS THEREOF APPROVED BY A CONGRESS OF THE INTERNATIONAL CHAMBER OF COMMERCE) (THE "International Standby Practices 1998" or such later version as may be published by the Institute of International Banking Law and Practice (the "ISP 1998UCP") and shallAND SHALL, as to matters not governed by the ISP 1998AS TO MATTERS NOT GOVERNED BY THE UCP, be governed byBE GOVERNED BY, and construed and interpreted in accordance withAND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, the laws of the State of TexasTHE LAWS OF THE STATE OF NEW YORK.
(c) Upon the issuance date of each Letter of Credit, the Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each other Bank, and each other Bank shall be deemed, without further action by any party hereto, to have purchased from the Issuing Bank, a participation, to the extent of such Bank's Pro Rata ShareCommitment Percentage, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of the Borrower due in respect of drawings made under such Letter of Credit. If requested by the Issuing Bank, the other Banks will execute any other documents reasonably requested by the Issuing Bank to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank determines is in compliance with the conditions for payment thereunder, the Issuing Bank shall promptly notify the Borrower, the Agent and each Bank of the intended date of honor of such draft and the Borrower hereby promises and agrees, at Borrower's option, agrees to either (i) pay to the Agent for the account of the Issuing Bank, by 2:00 p.m.11:00 a.m., DallasNew York, Texas New York time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections 2.01(a) and 2.02 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in Issuing Bank's noticefunds. If the Borrower fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a) and/or Section 5.02payment, each Bank shall, notwithstanding any other provision of this Credit Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Agent for the benefit of the Issuing Bank an amount equal to its Pro Rata Share Commitment Percentage of the presented draft on the day the Issuing Bank is required to honor such draft. If such amount is not in fact made available to Administrative the Agent by such Bank on such date, such Bank shall pay to the Agent for the account of the Issuing Bank, on demand made by the Issuing Bank, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) days following demand and thereafter until paid at the Base Rate. Upon receipt by Administrative Agent from the Banks of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrower, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (d) or elsewhere in this Agreement shall diminish Borrower's obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse Issuing Bank for payment of, any draft presented to, and duly honored by, Issuing Bank under any Letter of Credit, and the automatic funding of a Loan as in this paragraph provided shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as in this paragraph agreed.
(e) In order to induce the issuance of Letters of Credit by Issuing Bank and the purchase of participations therein by the other Banks, Borrower agrees with Issuing Bank and the other Banks that neither Administrative Agent nor any Bank (including the Issuing Bank) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's unconditional obligation to reimburse Issuing Bank for amounts paid by Issuing Bank, as provided in Subsection 2.09(d), on account of drafts so honored under the Letters of Credit shall not be affected by any circumstance, act or omission whatsoever (whether or not known to Administrative Agent or any Bank (including the Issuing Bank) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Issuing Bank. Borrower agrees that any action taken or omitted to be taken by the Issuing Bank under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower and shall not put the Issuing Bank under any resulting liability to Borrower, unless such action or omission is the result of the gross negligence or willful misconduct of the Issuing Bank. Borrower hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. Issuing Bank agrees promptly to notify Borrower whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower shall not in any way affect Borrower's obligations hereunder. Subject to Section 3.01, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's obligations or the compensation to Issuing Bank in respect of the Letters of Credit or the cost to Issuing Bank of establishing and/or maintaining the Letters of Credit (or any participation therein), Issuing Bank shall promptly notify Borrower thereof in writing and within ten (10) Business Days after receipt by Borrower of Issuing Bank's request (through Administrative Agent) for reimbursement or indemnification or within thirty (30) days after receipt of a notice in respect of Taxes or Other Taxes, Borrower shall reimburse or indemnify Issuing Bank, as the case may be, with respect thereto so that Issuing Bank shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower to reimburse or indemnify the Issuing Bank shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes or monetary restraints, except a change in franchise taxes imposed on Issuing Bank or in tax on the net income of Issuing Bank.
(f) In the event that any provision of a Letter of Credit Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all LC Obligations shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower shall be obligated to pay to Administrative Agent immediately an amount equal to the LC Obligations. All amounts made due and payable by Borrower under product of (i) the average daily Federal Funds Effective Rate per annum during the period referred to in subclause (iii) of this Section 2.09(gsentence times (ii) may be applied as the amount of such Bank's Commitment Percentage of the presented draft times (iii) the number of days that elapse from the day the Issuing Bank elects honors such draft to any the date on which the amount equal to such Bank's Commitment Percentage of the various LC Obligations; provided, however, that such amounts applied by presented draft becomes immediately available to the Issuing Bank to the LC Obligations shall be divided (a) first applied to the Matured LC Obligations, and (b) second held by Issuing Bank as LC Collateral in the LC Collateral Account until all remaining Obligations have been satisfied. Thisiv)
Appears in 1 contract
Issuing the Letters of Credit. (a) In order to effect the issuance of a Letter of Credit, Borrower the Company shall submit a Notice of Borrowing Request and a LC Application in writing by telecopy to the Administrative Agent (who shall promptly notify the Issuing Bank Lender) not later than 1:00 12:00 p.m., DallasChicago, Texas Illinois time, three (3) Business Days before the requested date of issuance of such Letter of Credit. Each such Notice of Borrowing Request and LC Application shall be signed by Borrowerthe Company, specify the Business Day on which such Letter of Credit is to be issued, the purpose for the requested Letter of Credit, specify the availability for Letters of Credit under the Available Borrowing Base Base, and the $20,000,000 aggregate LC Obligation limitation as of the date of issuance of such Letter of Credit, Credit and the expiry date thereof which shall not be later than the earlier of (i) twelve (12) months from the date of issuance Issuance of such Letter of Credit and (ii) five (5) days the seventh Business Day prior to the Termination Date. If requested by the Company not later than three (3) Business Days prior to expiration of any Letter of Credit, any Letter of Credit may be renewed for the additional period specified in Section 2.1(c).
(b) Upon satisfaction of the applicable terms and conditions set forth in Article V, the Issuing Bank Lender shall issue such Letter of Credit to the specified beneficiary not later than the close of business, DallasChicago, Texas Illinois time, on the date so specified. Issuing Bank The Administrative Agent shall provide Borrower the Company and each Bank Lender with a copy of each Letter of Credit so issued. Each such Letter of Credit shall (i) provide for the payment of drafts, presented for honor thereunder by the beneficiary in accordance with the terms thereon, at sight when accompanied by the documents described therein and (ii) unless otherwise expressly agreed by Issuing Bank and Borrower at the time such Letter of Credit is issued, be subject to the rules Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500 (and any subsequent revisions thereof approved by a Congress of the "International Standby Practices 1998" or such later version as may be published by the Institute Chamber of International Banking Law and Practice Commerce) (the "ISP 1998"“UCP”) and shall, as to matters not governed by the ISP 1998UCP, be governed by, and construed and interpreted in accordance with, the laws of the State of TexasNew York.
(c) Upon the issuance date Issuance of each Letter of Credit, the Issuing Bank Lender shall be deemed, without further action by any party hereto, to have sold to each other BankLender, and each other Bank Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing BankLender, a participation, to the extent of such Bank's Lender’s Pro Rata Share, in such Letter of Credit, the obligations thereunder and in the reimbursement obligations of Borrower the Company due in respect of drawings made under such Letter of Credit. If requested by the Issuing BankLender, the other Banks Lenders will execute any other documents reasonably requested by the Issuing Bank Lender to evidence the purchase of such participation.
(d) Upon the presentment of any draft for honor under any Letter of Credit by the beneficiary thereof which the Issuing Bank Lender determines is in compliance with the conditions for payment thereunder, the Issuing Bank Lender shall promptly notify Borrowerthe Company, the Administrative Agent and each Bank Lender of the intended date of honor of such draft and Borrower the Company hereby promises and agrees, at Borrower's the Company’s option, to either (i) pay to the Administrative Agent for the account of the Issuing BankLender, by 2:00 p.m., DallasChicago, Texas Illinois time, on the date payment is due as specified in such notice, the full amount of such draft in immediately available funds or (ii) request a Loan pursuant to the provisions of Sections 2.01(a2.1(a) and 2.02 2.2 of this Agreement in the full amount of such draft, which request shall specify that the Borrowing Date is to be the date payment is due under the Letter of Credit as specified in the Issuing Bank's Lender’s notice. If Borrower the Company fails timely to make such payment because a Loan cannot be made pursuant to Section 2.01(a2.1(a) and/or or Section 5.025.2, each Bank Lender shall, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default), make available to the Administrative Agent for the benefit of the Issuing Bank Lender an amount equal to its Pro Rata Share of the presented draft on the day the Issuing Bank Lender is required to honor such draft. If such amount is not in fact made available to the Administrative Agent by such Bank Lender on such date, such Bank Lender shall pay to the Administrative Agent for the account of the Issuing BankLender, on demand made by the Issuing BankLender, in addition to such amount, interest thereon at the Federal Funds Rate for the first three (3) two days following demand and thereafter until paid at the Adjusted Base Rate. Upon receipt by the Administrative Agent from the Banks Lenders of the full amount of such draft, notwithstanding any other provision of this Agreement (including the occurrence and continuance of a Default or an Event of Default) the full amount of such draft shall automatically and without any action by Borrowerthe Company, be deemed to have been a Base Rate Loan as of the date of payment of such draft. Nothing in this paragraph (dSection 2.13(d) or elsewhere in this Agreement shall diminish Borrower's the Company’s obligation under this Agreement to provide the funds for the payment of, or on demand to reimburse the Issuing Bank Lender for payment of, any draft presented to, and duly honored by, the Issuing Bank Lender under any Letter of Credit, and the automatic funding of a Loan as provided in this paragraph provided Section 2.13(d) shall not constitute a cure or waiver of the Event of Default for failure to provide timely such funds as agreed in this paragraph agreedSection 2.13(d).
(e) In order to induce the issuance of Letters of Credit by the Issuing Bank Lender and the purchase of participations therein by the other BanksLenders, Borrower the Company agrees with the Administrative Agent, the Issuing Bank Lender and the other Banks Lenders that neither the Administrative Agent nor any Bank Lender (including the Issuing BankLender) shall be responsible or liable (except as provided in the following sentence) for, and Borrower's the Company’s unconditional obligation to reimburse the Issuing Bank Lender through the Administrative Agent for amounts paid by the Issuing BankLender, as provided in Subsection 2.09(d)Section 2.13(d) above, on account of drafts so honored under the Letters of Credit shall not be affected by by, any circumstance, act or omission whatsoever (whether or not known to the Administrative Agent or any Bank Lender (including the Issuing BankLender)) other than a circumstance, act or omission resulting from the gross negligence or willful misconduct of the Administrative Agent or any Lender, including the Issuing BankLender. Borrower The Company agrees that any action taken or omitted to be taken by the Administrative Agent or any Lender (including the Issuing Bank Lender) under or in connection with any Letter of Credit or any related draft, document or Property shall be binding on Borrower the Company and shall not put the Administrative Agent or any Lender (including the Issuing Bank Lender) under any resulting liability to Borrowerthe Company, unless such action or omission is the result of the gross negligence or willful misconduct of the Administrative Agent or any such Lender (including the Issuing BankLender). Borrower The Company hereby waives presentment for payment (except the presentment required by the terms of any Letter of Credit) and notice of dishonor, protest and notice of protest with respect to drafts honored under the Letters of Credit. The Issuing Bank Lender agrees promptly to notify Borrower the Company whenever a draft is presented under any Letter of Credit, but failure to so notify Borrower the Company shall not in any way affect Borrower's the Company’s obligations hereunder. Subject to Section 3.013.7, if while any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any public body, governmental agency or court of competent jurisdiction so as to affect any of Borrower's the Company’s obligations or the compensation to Issuing Bank any Lender in respect of the Letters of Credit or the cost to Issuing Bank such Lender of establishing and/or or maintaining the Letters of Credit (or any participation therein), Issuing Bank such Lender shall promptly notify Borrower the Company thereof in writing and within ten (10) Business Days after receipt by Borrower the Company of Issuing Bank's such Lender’s request (through the Administrative Agent) for reimbursement or indemnification or within thirty (30) 30 days after receipt of a notice in respect of Taxes or Other Taxes, Borrower the Company shall reimburse or indemnify Issuing Banksuch Lender, as the case may be, with respect thereto so that Issuing Bank such Lender shall be in the same position as if there had been no such enforcement, adoption or interpretation. The foregoing agreement of Borrower the Company to reimburse or indemnify the Issuing Bank Lenders shall apply in (but shall not be limited to) the following situations: an imposition of or change in reserve, capital maintenance or other similar requirements or in excise or similar taxes Taxes or monetary restraints, except a change in franchise taxes Taxes imposed on Issuing Bank such Lender or in tax Tax on the net income of Issuing Banksuch Lender.
(f) In the event that any provision of a Letter of Credit LC Application is inconsistent with, or in conflict of, any provision of this Agreement, including provisions for the rate of interest applicable to drawings thereunder or rights of setoff or any representations, warranties, covenants or any events of default set forth therein, the provisions of this Agreement shall govern.
(g) If the Obligations, or any part thereof, are declared or otherwise become immediately due and payable pursuant to Article IX of this Agreement, then all the entirety of the LC Obligations Obligation shall become immediately due and payable without regard for actual drawings or payments on the Letters of Credit, and Borrower the Company shall be obligated to pay to the Administrative Agent immediately an amount equal to the entirety of the LC ObligationsObligation. All amounts made due and payable by Borrower the Company under this Section 2.09(g2.13(g) may be applied as the Issuing Bank elects Lender and the Lenders elect to any of the various LC ObligationsObligation; provided, however, that such amounts applied by the Issuing Bank Lender and the Lenders to the LC Obligations Obligation shall be (ai) first applied to the Matured LC ObligationsObligation, and (bii) second held by the Administrative Agent in an interest bearing account for the benefit of the Issuing Bank Lender and the Lenders as LC Collateral, such LC Collateral to be held in an account with the Administrative Agent or an Affiliate thereof, until such remaining portion of the LC Obligation has either (i) become a portion of the Matured LC Obligation, at which time such LC Collateral Account until all remaining Obligations paid to the Administrative Agent shall be applied to such Matured LC Obligation, or (ii) expired undrawn, at which time an amount of such LC Collateral equal to such expired and undrawn LC Obligation, plus accrued interest thereon, shall be applied as otherwise required or permitted under Article IX. This Section 2.13(g) shall not limit or impair any rights which the Administrative Agent, the Issuing Lender or any of the Lenders may have been satisfied. Thisunder any other document or agreement relating to any Letter of Credit or portion of the LC Obligation, including without limitation, any LC Application.
Appears in 1 contract
Samples: Credit Agreement (Venoco, Inc.)
