Common use of Letter of Credit Sublimit Clause in Contracts

Letter of Credit Sublimit. Subject to the terms and conditions of this Agreement, during the period from the date hereof to the Termination Date, the Lender may from time to time cause the issuance, upon Borrower’s request, of letters of credit (each a “Letter of Credit” or collectively, the “Letters of Credit”) up to an aggregate face amount outstanding at any time of $1,500,000.00; provided that (i) the Letters of Credit shall be in form and substance acceptable to the Lender in its sole discretion, (ii) Borrower shall have executed and delivered to the Lender the Lender’s standard form Letter of Credit Agreement with respect to said Letters of Credit, (iii) at no time shall the aggregate sum of Advances under Section 3.1 hereof plus all Letter of Credit Liabilities exceed the Maximum Advance Amount, and (iv) no Letter of Credit shall have an expiry date later than three hundred sixty-five (365) days from the date of issuance (provided, however, that a Letter of Credit may provide for automatic extensions of its expiration date for one or more 365-day periods, so long as the Lender has the right to terminate the Letter of Credit at the end of each 365-day period). Notwithstanding the foregoing, in the event any Letter of Credit is outstanding five (5) days prior to the Termination Date, Borrower shall, on or before five (5) days prior to the Termination Date, deposit in an account with Lender, in the name and for the benefit of Lender (the “LC Collateral Account”), an amount in cash equal to 105% of the maximum amount available to be drawn on all then outstanding Letters of Credit. Such deposit shall be held by Lender as collateral for the payment and performance of all amounts owing by Borrower to Lender. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account and the Borrower hereby grants the Lender a security interest in the LC Collateral Account. The amount in such account may, at the Lender’s option and in its sole discretion, be applied by the Lender to amounts owing by reason of any draw on a Letter of Credit.

Letter of Credit Sublimit. Subject to (a) As part of the terms Revolving Line, Bank shall issue or have issued the Landlord Letter of Credit for Borrower’s account. The aggregate Dollar Equivalent amount utilized for the issuance of the Landlord Letter of Credit shall at all times reduce the amount otherwise available for Advances under the Revolving Line. The aggregate Dollar Equivalent of the face amount of the Landlord Letter of Credit (including any drawn but unreimbursed portion of the Landlord Letter of Credit) may not exceed the lesser of (i) Two Hundred Fifty Thousand Dollars ($250,000.00) and conditions (ii) (A) the lesser of the Revolving Line or the Borrowing Base, minus (B) the sum of all outstanding principal amounts of any Advances, minus (C) the outstanding principal balance of all Term Loan Advances. (b) If, on the Revolving Line Maturity Date (or the effective date of any termination of this Agreement), during the period from Landlord Letter of Credit is outstanding, then on such date Borrower shall provide to Bank cash collateral in an amount equal to at least one hundred five percent (105.0%) of the date hereof aggregate Dollar Equivalent of the face amount of the Landlord Letter of Credit plus all interest, fees and costs due or estimated by Bank to become due in connection therwith, to secure all of the Obligations relating to the Termination Date, the Lender may from time to time cause the issuance, upon Borrower’s request, of letters of credit (each a “Landlord Letter of Credit” or collectively, the “Letters of Credit”) up to an aggregate face amount outstanding at any time of $1,500,000.00; provided that (i) the Letters . The Landlord Letter of Credit shall be in form and substance acceptable to the Lender Bank in its sole discretion, (ii) Borrower discretion and shall have executed and delivered be subject to the Lender the Lenderterms and conditions of Bank’s standard form Application and Letter of Credit Agreement (the “Letter of Credit Application”). Borrower agrees to execute any further documentation in connection with respect the Landlord Letter of Credit as Bank may reasonably request. Borrower further agrees to said Letters be bound by Bank’s interpretations of the Landlord Letter of Credit, (iii) at no time and Borrower understands and agrees that Bank shall not be liable for any error, negligence, or mistake, whether of omission or commission, in following Borrower’s instructions or those contained in the aggregate sum of Advances under Section 3.1 hereof plus all Landlord Letter of Credit Liabilities exceed or any modifications, amendments, or supplements thereto. (c) The obligation of Borrower to immediately reimburse Bank for drawings made under the Maximum Advance Amount, and (iv) no Landlord Letter of Credit shall have an expiry date later than three hundred sixty-five (365) days from be absolute, unconditional, and irrevocable, and shall be performed strictly in accordance with the date terms of issuance (providedthis Agreement, however, that a the Landlord Letter of Credit may provide for automatic extensions of its expiration date for one or more 365-day periodsCredit, so long as the Lender has the right to terminate and the Letter of Credit Application.” “If, at any time, the end sum of each 365-day period(a) the outstanding principal amount of any Advances, plus (b) the outstanding principal balance of all Term Loan Advances, exceeds the lesser of either the Revolving Line or the Borrowing Base, Borrower shall immediately pay to Bank in cash the amount of such excess (such excess, the “Overadvance”). Notwithstanding .” and inserting in lieu thereof the foregoingfollowing: “If, in at any time, the event sum of (a) the outstanding principal amount of any Advances, plus (b) the face amount of the Landlord Letter of Credit is outstanding five (5) days prior to the Termination Date, Borrower shall, on or before five (5) days prior to the Termination Date, deposit in an account with Lender, in the name and for the benefit of Lender (the “LC Collateral Account”), an amount in cash equal to 105% including any drawn but unreimbursed portion of the maximum amount available to be drawn on all then outstanding Letters of Credit. Such deposit shall be held by Lender as collateral for the payment and performance of all amounts owing by Borrower to Lender. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account and the Borrower hereby grants the Lender a security interest in the LC Collateral Account. The amount in such account may, at the Lender’s option and in its sole discretion, be applied by the Lender to amounts owing by reason of any draw on a Landlord Letter of Credit), plus (c) the outstanding principal balance of all Term Loan Advances, exceeds the lesser of either the Revolving Line or the Borrowing Base, Borrower shall immediately pay to Bank in cash the amount of such excess (such excess, the “Overadvance”).” 3 The Loan Agreement shall be amended by deleting the following text, appearing in Section 2.6(d) thereof: “The unused portion of the Revolving Line, for purposes of this calculation, shall be calculated on a calendar year basis and shall equal the difference between (i) the Revolving Line, and (ii) the average for the period of the daily closing balance of the Revolving Line outstanding plus the outstanding principal balance of all Term Loan Advances, in each case tested as of the last day of the applicable calendar month;” and inserting in lieu thereof the following: “The unused portion of the Revolving Line, for purposes of this calculation, shall be calculated on a calendar year basis and shall equal the difference between (i) the Revolving Line, and (ii) the average for the period of the daily closing balance of the Revolving Line outstanding, plus the amount of the Landlord Letter of Credit (including any drawn but unreimbursed portion of the Landlord Letter of Credit), plus the outstanding principal balance of all Term Loan Advances, in each case tested as of the last day of the applicable calendar month;”

Letter of Credit Sublimit. Subject to (a) As part of the terms Revolving Line, Bank shall issue or have issued Letters of Credit denominated in Dollars or a Foreign Currency for Borrower’s account. The aggregate Dollar Equivalent amount utilized for the issuance of Letters of Credit shall at all times reduce the amount otherwise available for Advances under the Revolving Line. The aggregate Dollar Equivalent of the face amount of outstanding Letters of Credit (including drawn but unreimbursed Letters of Credit and conditions any Letter of Credit Reserve) may not exceed Ten Million Dollars ($10,000,000). (b) If, on the Revolving Line Maturity Date (or the effective date of any termination of this Agreement), during the period from the date hereof to the Termination Date, the Lender may from time to time cause the issuance, upon Borrower’s request, of letters of credit (each a “Letter of Credit” or collectively, the “there are any outstanding Letters of Credit”, then on such date Borrower shall provide to Bank cash collateral in an amount equal to at least 100% (at least 105% for Letters of Credit denominated in a Foreign Currency) up to an of the aggregate Dollar Equivalent of the face amount outstanding at any time of $1,500,000.00; provided that (i) all such Letters of Credit plus all interest, fees, and costs due or estimated by Bank to become due in connection therewith, to secure all of the Obligations relating to such Letters of Credit. All Letters of Credit shall be in form and substance acceptable to the Lender Bank in its sole discretion, (ii) Borrower discretion and shall have executed and delivered be subject to the Lender the Lenderterms and conditions of Bank’s standard form Application and Letter of Credit Agreement (the “Letter of Credit Application”). Borrower agrees to execute any further documentation in connection with respect the Letters of Credit as Bank may reasonably request. Borrower further agrees to said be bound by the regulations and interpretations of the issuer of any Letters of Credit guarantied by Bank and opened for Borrower’s account or by Bank’s interpretations of any Letter of Credit issued by Bank for Borrower’s account, and Borrower understands and agrees that Bank shall not be liable for any error, negligence, or mistake, whether of omission or commission, in following Borrower’s instructions or those contained in the Letters of Credit or any modifications, amendments, or supplements thereto. (c) The obligation of Borrower to immediately reimburse Bank for drawings made under Letters of Credit shall be absolute, unconditional, and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, such Letters of Credit, (iii) at no time shall and the aggregate sum of Advances under Section 3.1 hereof plus all Letter of Credit Liabilities exceed the Maximum Advance Amount, and Application. (ivd) no Letter of Credit shall have an expiry date later than three hundred sixty-five (365) days from the date of issuance (provided, however, Borrower may request that Bank issue a Letter of Credit may provide payable in a Foreign Currency. If a demand for automatic extensions payment is made under any such Letter of its expiration date for one Credit, Bank shall treat such demand as an Advance to Borrower of the Dollar Equivalent of the amount thereof (plus fees and charges in connection therewith such as wire, cable, SWIFT or more 365-day periodssimilar charges). (e) To guard against fluctuations in currency exchange rates, so long as upon the Lender has issuance of any Letter of Credit payable in a Foreign Currency, Bank shall create a reserve (the right “Letter of Credit Reserve”) under the Revolving Line in an amount equal to terminate five percent (5%) of the face amount of such Letter of Credit. The amount of the Letter of Credit at the end of each 365-day period). Notwithstanding the foregoing, Reserve may be adjusted by Bank from time to time to account for fluctuations in the event any exchange rate. The availability of funds under the Revolving Line shall be reduced by the amount of such Letter of Credit is outstanding five (5) days prior to the Termination Date, Borrower shall, on or before five (5) days prior to the Termination Date, deposit in an account with Lender, in the name and Reserve for the benefit of Lender (the “LC Collateral Account”), an amount in cash equal to 105% of the maximum amount available to be drawn on all then outstanding Letters of Credit. Such deposit shall be held by Lender as collateral for the payment and performance of all amounts owing by Borrower to Lender. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over long as such account and the Borrower hereby grants the Lender a security interest in the LC Collateral Account. The amount in such account may, at the Lender’s option and in its sole discretion, be applied by the Lender to amounts owing by reason of any draw on a Letter of CreditCredit remains outstanding.

Letter of Credit Sublimit. Subject to Section 2.1.2(a) of the terms Loan Agreement is hereby deleted in the entirety and conditions replaced with the following: As part of this Agreementthe Revolving Loan, during the period from the date hereof to the Termination Date, the Lender may from time to time cause the issuance, upon Bank has issued Letters of Credit for each Borrower’s request, account. Such aggregate amounts utilized hereunder shall at all times reduce the amount otherwise available for Advances under the Revolving Loan. The aggregate amount of letters of credit (each a “Letter of Credit” or collectively, the “Existing Letters of Credit”) up to an aggregate face amount outstanding Credit may not exceed at any time the Availability Amount. The Bank may issue New Letters of $1,500,000.00; Credit provided that (i) the aggregate face amount of the New Letters of Credit and the APS Letter of Credit shall not exceed the Letter of Credit Sub-Facility; and (ii) prior to the issuance of any New Letter of Credit, the Borrowers shall deposit in a Cash Collateral Account an amount in cash equal to the face amount of such New Letter of Credit; provided, that if the face amount of any New Letter of Credit is reduced or such New Letter of Credit is terminated (and remains undrawn at the time of termination), the amount of cash collateral equal to such reduction (or, in the case of a terminated New Letter of Credit, the face amount thereof) shall be released to the Borrowers and shall be deposited into an account maintained with Bank. If, on the Revolving Loan Maturity Date, there are any outstanding Letters of Credit, then on such date Borrowers shall provide to Bank cash collateral in an amount equal to 105% of the face amount of all such Letters of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by Bank in its good faith business judgment), to secure all of the Obligations relating to said Letters of Credit. All Letters of Credit shall be in form and substance acceptable to the Lender Bank in its sole discretion, (ii) Borrower discretion and shall have executed and delivered be subject to the Lender the Lenderterms and conditions of Bank’s standard form Application and Letter of Credit Agreement with respect to said Letters of Credit, (iii) at no time shall the aggregate sum of Advances under Section 3.1 hereof plus all “Letter of Credit Liabilities exceed Application”). Borrowers agree to execute any further documentation in connection with the Maximum Advance Amount, and (iv) no Letter Letters of Credit shall have an expiry date later than three hundred sixty-five (365) days from as Bank may reasonably request. Borrowers further agree to be bound by the date regulations and interpretations of issuance (provided, however, that a Letter the issuer of any Letters of Credit may provide guarantied by Bank and opened for automatic extensions any Borrower’s account or by Bank’s interpretations of its expiration date for one or more 365-day periods, so long as the Lender has the right to terminate the Letter of Credit at the end of each 365-day period). Notwithstanding the foregoing, in the event any Letter of Credit is outstanding five (5) days prior to the Termination Dateissued by Bank for any Borrower’s account, Borrower shalland Borrowers understand and agree that Bank shall not be liable for any error, on negligence, or before five (5) days prior to the Termination Datemistake, deposit in an account with Lenderwhether of omission or commission, in following any Borrower’s instructions or those contained in the name and for the benefit of Lender (the “LC Collateral Account”), an amount in cash equal to 105% of the maximum amount available to be drawn on all then outstanding Letters of Credit. Such deposit shall be held by Lender as collateral for the payment and performance of all amounts owing by Borrower to Lender. The Lender shall have exclusive dominion and controlCredit or any modifications, including the exclusive right of withdrawalamendments, over such account and the Borrower hereby grants the Lender a security interest in the LC Collateral Account. The amount in such account may, at the Lender’s option and in its sole discretion, be applied by the Lender to amounts owing by reason of any draw on a Letter of Creditor supplements thereto.

Letter of Credit Sublimit. Subject to (a) On the terms and conditions of this Agreementset forth herein (i) the LC Issuer agrees, (A) from time to time on any Business Day during the period from the date hereof Closing Date to the Termination Revolving Commitment Maturity Date to Issue Letters of Credit for the account of the Borrower, and to amend or renew Letters of Credit previously Issued by it, in accordance with Sections 2.06.02(c) and 2.06.02(d), and (B) to honor properly drawn drafts under the Letters of Credit Issued by it; and (ii) the Lenders severally agree to participate in Letters of Credit Issued for the account of the Borrower; provided that the LC Issuer shall not be obligated to Issue, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of Issuance of such Letter of Credit (the "Issuance Date, ") (1) the Lender may from time to time cause Dollar Equivalent of the issuance, upon Borrower’s request, sum of letters (i) all Letter of credit Credit Obligations plus (each ii) the principal amount of all outstanding Loans exceeds the Total Revolving Credit Commitment or (2) if such Letter of Credit is a “Financial Letter of Credit” or collectively, the “Dollar Equivalent of all Letter of Credit Obligations with respect to the Financial Letters of Credit exceed the Financial Letter of Credit Sublimit or (3) if such Letter of Credit is a Performance Letter of Credit”) up , the Dollar Equivalent of all Letter of Credit Obligations with respect to an aggregate face amount outstanding at any time the Performance Letters of $1,500,000.00; provided that Credit exceed the Performance Letter of Credit Sublimit or (i4) the participation of any Lender in all Letter of Credit Obligations (in the amount of the Dollar Equivalent thereof) and in the Swingline Advances plus the Revolving Credit Loans made by such Lender exceed such Lender's Revolving Credit Commitment. Letters of Credit may be Issued in Dollars or Offshore Currencies. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and, accordingly, the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit which have expired or which have been drawn upon and reimbursed. (b) The LC Issuer shall not be under any obligation to Issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the LC Issuer from Issuing such Letter of Credit, or any Law applicable to the LC Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the LC Issuer shall prohibit, or request that the LC Issuer refrain from, the Issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the LC Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the LC Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the LC Issuer any unreimbursed loss, cost or expense which was not 26 35 applicable on the Closing Date and which the LC Issuer in good faitx xxxxx material to it and for which the LC Issuer is not otherwise compensated hereunder; or (ii) such Letter of Credit is not otherwise in form and substance reasonably acceptable to the Lender in its sole discretionLC Issuer, (ii) Borrower shall have executed and delivered to or the Lender the Lender’s standard form Letter Issuance of Credit Agreement with respect to said Letters of Credit, (iii) at no time shall the aggregate sum of Advances under Section 3.1 hereof plus all Letter of Credit Liabilities exceed the Maximum Advance Amount, and (iv) no such Letter of Credit shall have an expiry date later than three hundred sixty-five violate any applicable policies of the LC Issuer. (365c) days from the date of issuance (provided, however, that a Letter of Credit may provide for automatic extensions of its expiration date for one or more 365-day periods, so long as the Lender has the right to terminate the Letter of Credit at the end of each 365-day period). Notwithstanding the foregoing, in the event The LC Issuer shall not Issue any Letter of Credit if: (i) the LC Issuer has received written notice from any Lender, the Administrative Agent or the Borrower, on or prior to the Business Day prior to the requested date of Issuance of such Letter of Credit, that one or more of the applicable conditions contained in Article IV is outstanding five not then satisfied; (5ii) the expiry date or any renewed or extended expiry date of such Letter of Credit is later than 25 days prior to the Termination Revolving Commitment Maturity Date, Borrower shall, on or before five (5) days prior to the Termination Date, deposit in an account with Lender, in the name and for the benefit of Lender (the “LC Collateral Account”), an amount in cash equal to 105% unless all of the maximum amount available to be drawn on all then outstanding Letters of Credit. Such deposit shall be held by Lender as collateral for the payment and performance of all amounts owing by Borrower to Lender. The Lender shall Lenders have exclusive dominion and control, including the exclusive right of withdrawal, over approved such account and the Borrower hereby grants the Lender a security interest expiry date in the LC Collateral Account. The amount in writing; or (iii) such account may, at the Lender’s option and in its sole discretion, be applied by the Lender to amounts owing by reason of any draw on a Letter of CreditCredit is denominated in a currency other than Dollars or an Offshore Currency. Section 2.06.

Letter of Credit Sublimit. Subject to (a) On the terms and conditions of this Agreementset forth herein (i) the LC Issuer agrees, (A) from time to time on any Business Day during the period from the date hereof Closing Date to the Termination DateRevolving Commitment Maturity Date to Issue Letters of Credit for the account of any one or more of the Borrowers, and to amend or renew Letters of Credit previously Issued by it, in accordance with Sections 2.06.02(c) and 2.06.02(d), and (B) to honor properly drawn drafts under the Letters of Credit Issued by it; and (ii) the Lenders severally agree to participate in Letters of Credit Issued for the account of any one or more of the Borrowers; PROVIDED that the LC Issuer shall not be obligated to Issue, and no Lender may from time shall be obligated to time cause participate in, any Letter of Credit if as of the issuance, upon Borrower’s request, date of letters Issuance of credit such Letter of Credit (each the "ISSUANCE DATE") (1) the Dollar Equivalent of the sum of (i) all Letter of Credit Obligations PLUS (ii) the principal amount of all outstanding Loans exceeds the Total Revolving Credit Commitment or (2) if such Letter of Credit is a “Financial Letter of Credit” or collectively, the “Dollar Equivalent of all Letter of Credit Obligations with respect to the Financial Letters of Credit exceed the Financial Letter of Credit Sublimit or (3) if such Letter of Credit is a Performance Letter of Credit”) up , the Dollar Equivalent of all Letter of Credit Obligations with respect to an aggregate face amount outstanding at any time the Performance Letters of $1,500,000.00; provided that Credit exceed the Performance Letter of Credit Sublimit or (i4) the participation of any Lender in all Letter of Credit Obligations (in the amount of the Dollar Equivalent thereof) and in the Swingline Advances plus the Revolving Credit Loans made by such Lender exceed such Lender's Revolving Credit Commitment. Letters of Credit may be Issued in Dollars or Offshore Currencies. Within the foregoing limits, and subject to the other terms and conditions hereof, each Borrower's ability to obtain Letters of Credit shall be fully revolving, and, accordingly, such Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit which have expired or which have been drawn upon and reimbursed. (b) The LC Issuer shall not be under any obligation to Issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the LC Issuer from Issuing such Letter of Credit, or any Law applicable to the LC Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the LC Issuer shall prohibit, or request that the LC Issuer refrain from, the Issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the LC Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the LC Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the LC Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the LC Issuer in good xxxxx xxxxx material to it and for which the LC Issuer is not otherwise compensated hereunder; or (ii) such Letter of Credit is not otherwise in form and substance reasonably acceptable to the Lender in its sole discretionLC Issuer, (ii) Borrower shall have executed and delivered to or the Lender the Lender’s standard form Letter Issuance of Credit Agreement with respect to said Letters of Credit, (iii) at no time shall the aggregate sum of Advances under Section 3.1 hereof plus all Letter of Credit Liabilities exceed the Maximum Advance Amount, and (iv) no such Letter of Credit shall have an expiry date later than three hundred sixty-five violate any applicable policies of the LC Issuer. (365c) days from the date of issuance (provided, however, that a Letter of Credit may provide for automatic extensions of its expiration date for one or more 365-day periods, so long as the Lender has the right to terminate the Letter of Credit at the end of each 365-day period). Notwithstanding the foregoing, in the event The LC Issuer shall not Issue any Letter of Credit if: (i) the LC Issuer has received written notice from any Lender, the Administrative Agent or the Company, on or prior to the Business Day prior to the requested date of Issuance of such Letter of Credit, that one or more of the applicable conditions contained in Article IV is outstanding five not then satisfied; (5ii) the expiry date or any renewed or extended expiry date of such Letter of Credit is later than 25 days prior to the Termination Revolving Commitment Maturity Date, Borrower shall, on or before five (5) days prior to the Termination Date, deposit in an account with Lender, in the name and for the benefit of Lender (the “LC Collateral Account”), an amount in cash equal to 105% unless all of the maximum amount available to be drawn on all then outstanding Letters of Credit. Such deposit shall be held by Lender as collateral for the payment and performance of all amounts owing by Borrower to Lender. The Lender shall Lenders have exclusive dominion and control, including the exclusive right of withdrawal, over approved such account and the Borrower hereby grants the Lender a security interest expiry date in the LC Collateral Account. The amount in writing; or (iii) such account may, at the Lender’s option and in its sole discretion, be applied by the Lender to amounts owing by reason of any draw on a Letter of CreditCredit is denominated in a currency other than Dollars or an Offshore Currency.