Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer. (b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. As a condition to the entry into this Agreement, Assignee is simultaneously causing the delivery to Lessor of an original, unconditional and irrevocable Letter of Credit, in form and content satisfactory to Lessor, in its sole discretion (athe "Letter of Credit"), issued by NationsBank of Florida, N.A. (the "Bank") The Vendor in the original amount of $300,000, which shall secure its serve as security for the performance of Assignee's obligations under Section 9.2(c)the Lease. In the event of any default by Assignee under the Lease beyond any applicable grace or cure period, insofar as it relates Lessor, without further notice to a Purchase Agreement Default in respect or demand upon Assignee, shall have the right to draw upon all or any portion of Section 5.1(ii), and Section 9.2(d) the funds evidenced by providing the Purchaser with a Letter of Credit naming in amounts representing all or any portion of amounts then owing to Lessor under the Purchaser as beneficiary for an amount equal to Lease. In the LC Amount. Such event that (i) Lessor receives written notice from the Bank that the Letter of Credit shall not be delivered renewed in the full amount thereof, (ii) there is for any other reason less than 30 days remaining prior to the Purchaser concurrently then expiration date of the Letter of Credit or (iii) Lessor, in its reasonable judgment, determines that the financial ability of the Bank to fund under the Letter of Credit is in question, then, and in any of such events, Lessor shall have the right to draw down the full amount of the Letter of Credit and hold the proceeds thereof as a cash security deposit by Assignee under the Lease, with the same rights to draw down upon the same as were previously enjoyed with respect to the Letter of Credit itself. The Letter of Credit, or such cash security deposit, or such portions of either as may then be remaining, shall be returned to Assignee only upon the expiration or earlier termination of the Lease, but then only after all amounts which are owing or which could become owing to Lessor under the Lease have been fully paid therefrom to Lessor. Wherever the term "Letter of Credit" is used above, it shall be deemed to refer to the original Letter of Credit delivered simultaneously with the execution of this AgreementAgreement and each substitute thereof (whether substitution occurs on account of renewals, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(creductions after draws have been made or otherwise), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. (a) The Vendor shall secure its In order to guarantee their indemnity obligations under Section 9.2(c)11.1, insofar as it relates to the Seller Parties shall provide the Buyer at Closing a Purchase Agreement Default standby letter of credit in respect of Section 5.1(ii)form and substance, and Section 9.2(d) issued by providing a financial institution reasonably acceptable to Buyer in the Purchaser with a amount of $5,000,000 (the “First Letter of Credit naming Amount”); provided that, (i) on the Purchaser as beneficiary for an amount equal to expiration of the LC Amount. Such Letter period of Credit shall be delivered to eighteen (18) months from the Purchaser concurrently with the execution date of this Agreement, and the Vendor standby letter of credit shall maintain be reduced to the greater of $2,500,000 or the aggregate face amounts of any pending Claims for which the Seller Parties may have an obligation to make indemnification, but to an amount no greater than the First Letter of Credit in effect, including by way of renewals for Amount (the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such “Second Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(cAmount”), insofar as it relates to a Purchase Agreement Default in respect and (ii) on the expiration of Section 5.1(ii)the thirty-six (36) month period from the date of this Agreement, or Section 9.2(d) but only the letter of credit shall be reduced to the extent aggregate face amounts of such Indemnified Losses or if a renewal any pending Claims for which the Seller Parties may have an obligation to make indemnification, but to an amount no greater than the Second Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerAmount.
(b) At any time, the Seller Parties shall have the right to deposit any amount required to be held by the Seller Parties under Section 9.8(a11.5(a) shall not impairin an interest bearing escrow account with an authorized entity acceptable to both the Seller Parties and Buyer, effect or limit in any way whatsoever on escrow terms mutually acceptable to both Seller Parties and Buyer, and reduce the rights and remedies amount of the Purchaser letter of credit otherwise required thereunder dollar for dollar. Any interest accrued in respect of the deposit shall belong to the Seller Parties, and its Additional Indemnities otherwise available the Seller Parties shall have the right to withdraw any such interest accrued, it being understood that the Seller Parties are only required to maintain in this Article 9the escrow account the amount required to be maintained under Section 11.5(a).
(c) The Seller Parties agree that subject to the limitations of survival of indemnities set forth in Section 11.3 hereof, the standby letter of credit or the escrow account, as may be applicable, shall be maintained until the final disposition of any such Claim for which the Corporate Sellers may have an obligation to make indemnification.
Appears in 1 contract
Samples: Stock Purchase Agreement (Acadia Healthcare Company, Inc.)
Letter of Credit. (a) The Vendor shall secure As security for the performance by Sublessee of its obligations under Section 9.2(c)the Sublease, insofar as it relates Sublessee, at its sole expense, shall upon execution of this Sublease deliver to a Purchase Agreement Default in respect of Section 5.1(ii)Sublessor, and Section 9.2(d) by providing maintain in effect at all times during the Purchaser with a term of the Sublease, an irrevocable standby letter of credit ("Letter of Credit naming Credit") in the Purchaser amount of One Hundred Thousand Dollars ($100,000.00) issued by a reputable banking institution ("Issuer") satisfactory to Sublessor in favor of Sublessor, as beneficiary for an amount equal to the LC Amountbeneficiary. Such The Letter of Credit shall be delivered contain terms and conditions satisfactory to Sublessor, and, without limiting the Purchaser concurrently with generality of the execution of this Agreementforegoing, and shall provide that Sublessor shall have the Vendor shall maintain right to draw on the Letter of Credit any number of times and in effect, including by way any amounts (but the total of renewals for the entire LC Claim Period, from time to time amounts so drawn shall not be more than One Hundred Thousand Dollars ($100,000.00) in the aggregate). Any and all such drawings may be made after the date of execution of this Sublease and prior to its expiry date. The Purchaser will be entitled to present such the expiration date of the Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d(a) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 any time within thirty (30) days prior to the expiry expiration date of the then outstanding Letter of Credit; provided, that, Credit if Sublessor has not prior to the Vendor shall maintain thirtieth (30th) day before the expiration date of the Letter of Credit received notice in writing from the Issuer of the Issuer's renewal of the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter period of Credit for payment earlier in the LC Claim Period. At at least one year or (b) at any time if:
(i) Sublessee has at any time failed to perform any of its obligations undar the Sublease; and
(ii) Sublessor has given Sublessee notice of Sublessee's such failure to perform specifying the nature of such default and Sublessee has failed to remedy such default within twenty (20) days after such notice by Sublessor to Sublessee. Nothing contained in this Paragraph 3 shall limit or restrict Sublessor's rights to recover additional damages from Sublessee in excess of the Closing Date, the Vendor may, in lieu amount of the Letter of Credit, secure its obligations Credit or shall limit or restrict Sublessor's rights or remedies otherwise available under Section 9.2(c), by providing environmental insurance wherein this Sublease or under applicable law in the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder event of the LC Claim Period, PEC, the Purchaser and the PurchaserSublessee's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurancedefault. The Purchaser shall grant reasonable access to the non-PNG information provisions of this Paragraph 3 are cumulative and additional to any such insurerother rights or remedies which Sublessor may have under this Sublease or by law for damages or otherwise.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. 6.2.1 Notwithstanding Section 6.1 above, Subtenant shall, within ten (a10) The Vendor shall secure its obligations under Business Days following Subtenant’s execution and delivery of this Sublease, deliver to Sublandlord in lieu of cash security deposits required pursuant to Section 9.2(c6.1 an unconditional, clean, irrevocable letter of credit (the “Letter of Credit”), insofar as it relates subject to a Purchase Agreement Default in respect of Section 5.1(ii), the following terms and Section 9.2(d) by providing conditions. If Subtenant fails to deliver the Purchaser with a Letter of Credit naming to Sublandlord within ten (10) Business Days following Subtenant’s execution and delivery of this Sublease, Sublandlord may terminate this Sublease by written notice to Subtenant and in such event neither party shall have any obligations to the Purchaser other party under this Sublease. Delivery of such Letter of Credit shall satisfy the Security Deposit required in Section 6.1. If Subtenant is entitled to the Burn Down Right as beneficiary for described in Section 6.1 above, then Subtenant may reduce the Letter of Credit to be in an aggregate amount equal to the LC AmountSecurity Deposit resulting therefrom by issuance of an amendment to the existing Letter of Credit or replacement of the existing Letter of Credit with a new Letter of Credit meeting the requirements of this Section 6.2 (and, for the avoidance of doubt, any such replacement or amended letter of credit shall be deemed part of the Letter of Credit hereunder) and Sublandlord shall promptly following request of Subtenant complete all reasonable documentation reasonably required by the issuing bank to reduce the amount of the Letter of Credit in accordance with the foregoing. Subtenant’s failure to deliver the Letter of Credit as provided above shall, notwithstanding anything in this Sublease or the Master Lease to the contrary, constitute a default by Subtenant hereunder for which there shall be no notice or grace or cure period applicable thereto and Subtenant shall not be entitled to possession hereunder until it has delivered the Letter of Credit as provided above. Subtenant shall pay all expenses, points and/or fees incurred by Subtenant in obtaining the Letter of Credit. Such Letter of Credit shall be delivered be: (i) in the form attached to the Purchaser concurrently with the execution and hereby made a part of this Agreement, Sublease as Exhibit C; (ii) at all times in the amount of the Security Deposit and shall permit multiple draws without a corresponding reduction in the Vendor shall maintain amount of the Letter of Credit required to be maintained by Subtenant hereunder; (iii) made payable to Sublandlord and expressly transferable and assignable; (iv) payable in effectthe City of San Francisco, California or Santa Xxxxx County, California and “callable” at sight upon presentment of a simple sight draft or certificate (including via delivery by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be overnight courier) stating only that Sublandlord is entitled to present such draw on the Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to this Sublease; (v) for a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(dterm not less than one year; and (vi) but only to contain an “evergreen” provision that provides that the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by will be automatically renewed on an annual basis unless the Vendor to the Purchaser issuer delivers at least 30 thirty (30) days’ prior written notice of cancellation to Sublandlord and Subtenant, such that the Letter of Credit remains in existence through the date occurring ninety (90) days after the expiration of the Term. At least thirty (30) days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu current expiration date of the Letter of Credit, secure its obligations under Section 9.2(cSubtenant shall cause the Letter of Credit to be renewed (or automatically and unconditionally extended), by providing environmental insurance wherein or replaced, from time to time for a period of one year with the insurer final expiration date of the Letter of Credit being the ninetieth (who 90th) day after the final Expiration Date hereunder. The final Expiration Date hereunder is June 30, 2028, and thus, the ninetieth (90th) day after the final Expiration Date of the Term is September 28, 2028.
6.2.2 Each Letter of Credit shall be satisfactory issued by a federally chartered commercial bank that has a credit rating with respect to certificates of deposit, short term deposits or commercial paper of at least A 3 (or equivalent) by Xxxxx’x Investment Service, Inc., or at least AA (or equivalent) by Standard & Poor’s, a division of XxXxxx-Xxxx, and shall be otherwise acceptable to Sublandlord in its sole and absolute discretion. If the issuer’s credit rating is reduced below A 3 (or equivalent) by Xxxxx’x Investment Service, Inc. or below AA (or equivalent) by Standard & Poor’s, a division of XxXxxx-Xxxx, or if the financial condition of such issuer changes in any other materially adverse way as determined in Sublandlord’s sole and absolute discretion, then Subtenant shall obtain from a different issuer a substitute Letter of Credit that complies in all respects with the requirements of Section 6.2.1, and Subtenant’s failure to obtain such substitute Letter of Credit within ten (10) Business Days following its receipt of Sublandlord’s demand therefor (and Subtenant’s failure to do so shall, notwithstanding anything in this Sublease or the Master Lease to the Purchasercontrary, acting reasonablyconstitute a default by Subtenant hereunder for which there shall be no notice or grace or cure period applicable thereto) agrees and shall entitle Sublandlord to unconditionally indemnifyimmediately draw upon the then existing Letter of Credit in whole or in part, for without notice to Subtenant and to hold the remainder proceeds thereof as the Security Deposit. Sublandlord hereby approves of Silicon Valley Bank as the initial issuer of the LC Claim Period, PEC, Letter of Credit and approves of the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser financial standing of Silicon Valley Bank as of the Signing Date Effective Date. If the issuer of the Letter of Credit is insolvent or at placed into receivership or conservatorship by the Federal Deposit Insurance Corporation, or any time thereafter has successor or similar entity, or if a trustee, receiver or liquidator is appointed for the issuer, then Subtenant shall obtain from a different issuer a substitute Letter of Credit that complies in respect all respects with the requirements of non-Canadian petroleum this Section 6.2, and natural gas explorationSubtenant’s failure to obtain such substitute Letter of Credit within ten (10) Business Days following its receipt of Sublandlord’s demand therefor (and Subtenant’s failure to do so shall, development notwithstanding anything in this Sublease or the Master Lease to the contrary, constitute a default of Subtenant hereunder for which there shall be no notice or grace or cure periods applicable thereto) and production operations carried out shall entitle Sublandlord to immediately draw upon the then existing Letter of Credit in whole or in part, without notice to Subtenant and to hold the proceeds thereof as the Security Deposit.
6.2.3 Sublandlord shall have the right to assign its interest in any Letter of Credit delivered to it by Subtenant pursuant to this Section 6.2 to any assignee of Sublandlord so long as such assignee agrees to assume the obligations of Sublandlord under this Sublease and the obligations of Sublandlord, as tenant, under the Master Lease and Sublandlord shall give notice of any such assignment to Subtenant. If requested by any one such assignee, Subtenant shall obtain an amendment to such Letter of Credit that names such assignee as the beneficiary thereof in lieu of Sublandlord. Any failure or more refusal of PEC the issuer to honor the Letter of Credit shall be at Subtenant’s sole risk and shall not relieve Subtenant of its obligations hereunder with respect to the Security Deposit.
6.2.4 Notwithstanding anything in this Sublease or the Master Lease to the contrary, any cure or grace period set forth in this Sublease or the Master Lease shall not apply to any of its predecessors or subsidiaries the foregoing, and, specifically, if Subtenant fails to timely comply with the foregoing terms of predecessors; providedthis Section 6.2, howeverthen Sublandlord shall have the right to draw upon the Letter of Credit without notice to Subtenant and hold the proceeds as the Security Deposit. If any portion of the Letter of Credit is drawn upon, that Subtenant shall, within ten (10) Business Days after written demand therefor, reinstate the Vendor Letter of Credit to the amount then required under this Sublease, and Subtenant’s failure to do so within ten (10) Business Days shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurera default under this Sublease.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Sublease (Twilio Inc)
Letter of Credit. In connection with the Seller Parties' indemnification obligations hereunder and in lieu of placing a portion of the Cash Purchase Price in escrow, the Seller Parties shall tender the Purchaser Parties one or more Letters of Credit (ain each case, a "Letter of Credit") The Vendor shall secure its obligations under Section 9.2(cissued by a national or international banking institution reasonably acceptable to the Purchaser Parties in the following amount: (i) from the Closing Date through the end of the fifteenth (15th) month following the Closing Date (the "Initial Letter Of Credit Period"), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a such Letter of Credit naming shall be in an amount equal to Four Million Dollars ($4,000,000) and (ii) on the Purchaser as beneficiary for first day of the sixteenth (16th) month following the Closing Date through the end of the twenty-fourth (24th) month following the Closing Date such Letter of Credit shall be reduced to an amount equal to the LC Amount. Such Letter lesser of Credit shall be delivered to (a) two Million Dollars ($2,000,000) and (b) the Purchaser concurrently with the execution of this Agreement, difference between Four Million Dollars ($4,000,000) and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present aggregate amount drawn under such Letter of Credit for payment if it provides during the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Initial Letter of Of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor term of each Letter of Credit shall be solely liable for all premiums no longer than one year, and related costs associated the Seller Parties shall renew the Letter of Credit effective on the one-year anniversary of the Closing Date in accordance with the provisions of this Section 6.13 and shall provide Purchaser Parties with evidence of such insurancerenewal ten (10) Business Days prior the expiration thereof. The Purchaser form and content of the letter of credit shall grant reasonable access be reasonably acceptable to the non-PNG information Purchaser Parties and shall provide for the payment to the Purchaser Parties of any Losses incurred by the Purchaser Parties in connection with the Seller Parties' indemnification obligations herein. Notwithstanding anything to the contrary contained in this Section 6.13, any such insurer.
Letter of Credit shall expire at 5:00 p.m. New York time on the second (b2nd) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies anniversary of the Purchaser and its Additional Indemnities otherwise available in this Article 9Closing Date.
Appears in 1 contract
Letter of Credit. At the Closing hereof, a standby letter of credit in the amount of $1,250,000.00 having an expiration date of twenty-five (a25) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates months of the Closing Date and payable to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Escrow Agent (the "Letter of Credit naming the Purchaser as beneficiary for an amount equal Credit") shall be delivered by Buyer to the LC AmountEscrow Agent to be held in accordance with the terms of this Section 14. Such The Letter of Credit shall be delivered to drawable solely by the Purchaser concurrently with the execution of this AgreementEscrow Agent, and solely upon a circumstance which would entitle Seller to receive all or a portion of the Vendor shall maintain proceeds of the Letter of Credit as set forth in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry datethis Section 14. The Purchaser will Letter of Credit shall not in any event be drawn upon without at least five (5) business days' prior written notice to Buyer within which period Buyer in its sole discretion shall be entitled to present such Letter deposit with the Escrow Agent an amount of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default cash in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry lieu of the then outstanding Escrow Agent's drawing upon the Letter of Credit; provided, that, . If there shall be any dispute as to whether Seller is entitled to all or any portion of the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu proceeds of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory or whether Buyer is entitled to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder return of the LC Claim Period, PECLetter of Credit or any part thereof, the Purchaser and Escrow Agent shall not make any delivery, but in such event the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to Escrow Agent shall hold the PurchaserLetter of Credit (or the cash proceeds thereof) until receipt by the Escrow Agent of an authorization in writing signed by all parties having an interest in such dispute, acting reasonablydirecting the disposition of same, having regard to all information (or in the "non-PNG information") that absence of such authorization the Purchaser as Escrow Agent shall hold the Letter of Credit until the final determination of the Signing Date rights of the parties in an appropriate proceeding. If such written authorization is not given, or proceedings for such determination are not begun within a reasonable period of time and diligently continued, the Escrow Agent shall have the right, at any time thereafter has thereafter, to commence an action or proceeding, at the sole cost and expense of Buyer and Seller, in respect the nature of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit an interpleader in any way whatsoever court having jurisdiction thereof, and to deposit the rights and remedies Letter of the Purchaser and its Additional Indemnities otherwise available in this Article 9.Credit (or the
Appears in 1 contract
Samples: Asset Purchase Agreement (Tri State Outdoor Media Group Inc)
Letter of Credit. (ai) The Vendor As of the Closing Date, Newco shall, and Collegium shall secure its obligations under Section 9.2(ccause Newco to, deliver to Depomed an irrevocable standby letter of credit from a nationally recognized financial institution (the “Financial Institution”), insofar as it relates in form and substance reasonably acceptable to Depomed, in favor of Depomed (the “Letter of Credit”) in an aggregate amount of Thirty-Three Million Seven Hundred Fifty Thousand Dollars ($33,750,000) (the “Maximum Stated Value”), to be issued pursuant to a Purchase Agreement Default master agreement in respect of Section 5.1(ii), form and Section 9.2(d) by providing substance reasonably acceptable to Depomed (the Purchaser with a “Master Letter of Credit naming Agreement”, and together with the Purchaser as beneficiary for an amount equal to Letter of Credit, the LC Amount. Such “Letter of Credit Documents”). Depomed shall be delivered have the right to draw upon the Letter of Credit, up to the Purchaser concurrently Maximum Stated Value, in the event that there is a shortfall in the Minimum Quarterly Payment made to Depomed by Collegium pursuant to Section 7.3(a) hereof, solely to the extent of such quarterly shortfall as determined in good faith by Depomed (a “Quarterly Shortfall”), provided that Collegium does not pay the amount of such Quarterly Shortfall to Depomed within forty-five (45) days after the last day of such calendar quarter.
(ii) At any time prior to the Expiration Date (as defined below), Depomed may provide a written notice to the Financial Institution and Newco asserting a Quarterly Shortfall (the “Claim Notice”). The Claim Notice shall state the amount of such Quarterly Shortfall (the “Claim Amount”). Following its receipt of a Claim Notice, the Financial Institution shall permit Depomed to draw upon the Letter of Credit in the amount of the Claim Amount and shall deliver the applicable funds under the Letter of Credit in accordance with the execution of this AgreementClaim Notice.
(iii) Newco shall, and the Vendor Collegium shall cause Newco to, maintain the Letter of Credit in effecteffect until the earliest of (A) 5:00 p.m. eastern time on the day that is sixty-one (61) days after the fourth anniversary of the Closing Date, including by way of renewals for (B) the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such date on which the Financial Institution honors a drawdown on the Letter of Credit for payment if it provides which exhausts the Vendor with a Notice Maximum Stated Amount and (C) the termination of Claim for Indemnified Losses pursuant to Section 9.2(cthis Agreement by either party ((A), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii(B) or (C), or Section 9.2(d) but only to the extent of such Indemnified Losses or “Expiration Date”). For clarity, if a renewal there is any drawdown on the Letter of Credit is pursuant to this Section 7.7(a)(iii), Newco shall not provided by be obligated, and Collegium shall not be obligated to cause Newco to, reissue the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; providedCredit at the full Maximum Stated Value or at any value. Further, thatif there is any drawdown on the Letter of Credit pursuant to this Section 7.7(a)(iii), the Vendor Newco shall not be obligated, and Collegium shall not be obligated to cause Newco, to maintain the Letter of Credit in an aggregate amount of the Maximum Stated Value for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter term of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerthis Agreement.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. (ai) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), On or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time date ten (10) calendar days after the Closing Date, the Vendor mayCompany shall obtain irrevocable letters of credit (each a "Letter of Credit", together the Letters of Credit) issued in favor of each of the Buyers, in lieu the amount of such Buyers pro rata portion of $3,000,000 (the "Buyer LC Amount", and collectively, the "Letter of Credit Amount") by a bank acceptable to the Buyers (the "Letter of Credit Bank") and in form and substance acceptable to the Buyers. The Letters of Credit, including any renewals, extensions or replacements referred to below, shall expire not earlier than the earlier of (x) the five (5) year anniversary of the Closing Date, (y) the date the Put Option Agreement has terminated in accordance with its terms and (z) been exercised in full by the Buyers (the "LC Redemption Expiration Date") unless the Letters of Credit shall have been reduced to zero in accordance with the terms contained in this Section 4(p) prior to such date. On the Date the Letters of Credit are obtained by the Company, each Buyer shall deliver to the Letter of Credit Bank, for such Buyer's Letter of Credit, the amount set forth opposite such Buyer's name in column (8) of the Schedule of Buyers by wire transfer of immediately available funds pursuant to the wire instructions provided by the Letter of Credit Bank.
(ii) Upon a Buyer exercising its rights under the Put Option Agreement, such Buyer may draw under its Letter of Credit, including any renewals, extensions or replacements referred to below, such portion of the Letter of Credit not to exceed, in the aggregate, the Cash Payment (as defined in the Put Option Agreement) amount of the Put Price (as defined in the Put Option Agreement) due to the Buyer from the Company upon such exercise. The Company shall obtain such renewals, extensions or replacements of each Letter of Credit as necessary to ensure that the Letter of Credit shall not expire prior to the LC Redemption Expiration Date (unless such Letter of Credit shall have been reduced to zero in accordance with the terms contained in this Section 4(p) prior to such date). If, at any time, the Company cannot obtain a renewal, extension or replacement of the Letters of Credit such that the Letters of Credit will expire prior to the LC Redemption Expiration Date (a "Withdrawal Event"), the Company and the Letter of Credit Bank shall each give the Buyers written notice of the occurrence of a Withdrawal Event at least forty-five (45) days prior to the then current expiration date of the Letters of Credit. Following a Withdrawal Event, secure each Buyer shall be entitled to draw down its Buyer LC Amount in its entirety and hold such amount as collateral security for the obligations under Section 9.2(cthe Put Option Agreement.
(iii) At such time that the aggregate Put Price payable by the Company under the Put Option Agreement is less than $3,000,000 (the "Reduction Threshold Event"), by providing environmental insurance wherein the insurer (who shall be satisfactory Company may deliver a notice to the PurchaserLC Agent (the "LC Reduction Notice"), acting reasonablycertifying as to the occurrence of the Reduction Threshold Event. Within seven (7) agrees to unconditionally indemnify, for Business Days after the remainder LC Agent's receipt of the LC Claim PeriodReduction Notice, PECunless the LC Agent reasonably objects to such LC Reduction Notice, the Purchaser LC Agent shall issue a written instruction to the Letter of Credit Bank to request the reduction of the Letter of Credit Amount as set forth in the LC Reduction Notice, such reduction amount to equal to the difference between $3,000,000 and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory aggregate Put Price payable by the Company under the Put Option Agreement at the time of such Reduction Threshold Event and applied pro rata to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as Letters of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerCredit.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Securities Purchase Agreement (Msgi Security Solutions, Inc)
Letter of Credit. (a) Within ten (10) business days after the execution of this Lease, Tenant shall deposit with Landlord an irrevocable letter of credit (the "Letter of Credit") in the amount of Eight Hundred Thousand Dollars ($800,000.00) as part of the Security Deposit under this Lease. The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming provided for under this Section shall be an unconditional "clean" Letter of Credit and require no documents, and shall be in the Purchaser form attached as beneficiary for an amount equal Exhibit D and from a banking institution satisfactory to Landlord; provided however, Landlord pre-approves Comerica Bank as the LC AmountIssuer initially. Such It shall also be in compliance with all applicable laws and regulations, including, without limitation, applicable regulations of the Comptroller of the Currency. The Letter of Credit shall have an absolute expiration date of not earlier than forty-five (45) days after the Expiration Date of the initial Term of this Lease and prior thereto shall be delivered extended automatically on each anniversary of issuance unless the Issuer provides Landlord with not less than forty-five (45) days prior written notice of non-renewal, in which case the same shall be replaced by Tenant with another Letter of Credit which complies with the foregoing requirements at least thirty (30) days prior to its expiration. It is agreed that in the event (i) Tenant defaults in the performance or observance of any of the terms, provisions, covenants and conditions of this Lease, including the payment of Rent or any other sum due from Tenant with respect to the Purchaser concurrently with the execution of this AgreementLease, and the Vendor shall maintain or (ii) the Letter of Credit is not extended or replaced by Tenant in effecta manner which complies with the foregoing provisions of this Section, including by way of renewals for Landlord shall have the entire LC Claim Periodright but shall not be required to, from time to time prior without prejudice to its expiry date. The Purchaser will be entitled any other remedy Landlord may have on account thereof, to present such the Letter of Credit for payment if it provides and to retain the Vendor with a Notice proceeds as security in the event of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii)an occurrence under clause (i) above, or Section 9.2(din the event of an occurrence under clause (i) but only above, to use, apply or retain the whole or any part of the proceeds to the extent of such Indemnified Losses Landlord could use, apply or if retain any other funds deposited with Landlord as a renewal Letter of Credit is not Security Deposit hereunder, and any amounts so used, applied or retained shall be replenished by Tenant as provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain in Section 5.03 below. If Landlord presents the Letter of Credit for payment, no interest shall be payable to Tenant on the full LC Amount in effect for proceeds. Tenant shall not assign or encumber or attempt to assign or encumber the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in deposited (or the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu proceeds thereof) as part of the Letter of CreditSecurity Deposit, secure and neither Landlord nor its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who successors or assigns shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out bound by any one such assignment, encumbrance, attempted assignment or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerattempted encumbrance.
(b) Section 9.8(a) shall not impairNotwithstanding anything to the contrary contained herein, effect or limit in any way whatsoever Landlord agrees that the rights and remedies Letter of Credit held as part of the Purchaser Security Deposit pursuant to this Section shall be reduced (individually, a "Reduction", collectively, the "Reductions") as follows: a Reduction of Two Hundred Thousand Dollars ($200,000.00) on each anniversary of the Expansion Space A Commencement Date (ESACD), as such terms are defined in Rider 2 of the Lease, until such time as the Letter of Credit is reduced to zero. Each Reduction is expressly subject to the following: (i) prior to the anniversary date on which a Reduction is to be granted, there has occurred no default of Tenant beyond any applicable notice and its Additional Indemnities otherwise available grace period, and in the event such a default has occurred, the right to the pending Reduction and to all subsequent Reductions is waived; (ii) on the date on which such Reduction is to be granted there exists no act or omission on the part of Tenant which, with the passage of time or the giving of notice, or both would constitute a default of Tenant, in which event the right to that Reduction is suspended (until such default is timely cured) but not to all subsequent Reductions so long as Tenant has timely cured; and (iii) on or immediately after any anniversary date on which a Reduction is to be granted, and provided Tenant has qualified for same pursuant to this Article 9Section, Tenant must present Landlord with an acceptable (pursuant to this Section) substitute Letter of Credit or amendment to the existing Letter of Credit in such appropriately reduced amount. Landlord agrees, in the instance of a substitute Letter of Credit, to simultaneously surrender to the Issuer the one held.
Appears in 1 contract
Samples: Office Lease (Calico Commerce Inc/)
Letter of Credit. the Lessee shall be entitled, instead of paying the Security Deposit in cash in accordance with sub-clause (a) The Vendor above, to provide the Lessor with the Letter of Credit. In the event that the Lessee elects to provide the Letter of Credit, the following provisions shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(dapply:
(i) by providing Lessee shall cause the Purchaser with a Letter of Credit naming to be renewed or replaced by the Purchaser issuing bank not later than 10 Business Days before the expiration of such Letter of Credit, and shall cause the Letter of Credit to remain in effect, as beneficiary renewed, until 90 days after the scheduled Expiry Date.
(ii) If an Event of Default occurs and for as long as it continues, the Lessor (or, so long as the Security Interest of the Mortgage shall remain in effect, the Lender) may (but shall not be obliged to) call on the Letter of Credit and use or apply the proceeds in or towards satisfaction of any sums due and payable to the Lessor under this Agreement or to compensate the Lessor or Lender for any sums which it may, in its discretion, advance or expend as a result of any such Event of Default. Notwithstanding any such use or application by the Lessor or the Lender, the Lessee shall remain in default under this Agreement until the full amount owed by the Lessee, including interest accrued thereon pursuant to Clause 5.9, shall have been paid to the Lessor and the Lender. If the Lessor or, if applicable, the Lender so uses or applies all or any portion of the amount available under the Letter of Credit, the Lessee shall immediately, on demand of the Lessor or the Lender, procure the issue of a new Letter of Credit acceptable to the Lessor and the Lender for an amount equal to the LC Amount. Such amount so used or applied, or shall pay to the Lessor an amount in cash equal to the amount so used or applied to be held pursuant to Clause 5.1(a).
(iii) The Letter of Credit shall be delivered returned to the Purchaser concurrently with Lessee within five Business Days of.
(1) redelivery of the execution of Aircraft to the Lessor in the condition required by Clause 12 of, and Schedule 3 to, this Agreement; or
(2) receipt by the Lessor of the Agreed Value following a Total Loss and all other amounts due under Clause 11.1(b); or in either case, and at such later time as the Vendor Lessor is satisfied that the Lessee has irrevocably paid to the Lessor all amounts which are at that time outstanding under this Agreement; provided always that the Lessor shall maintain not be obliged to return the Letter of Credit in effectif, including by way of renewals for at the entire LC Claim Periodrelevant time, from time to time prior to its expiry date. The Purchaser will a Default shall have occurred and be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurercontinuing.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(cThis Debenture is the debenture referred to in an irrevocable letter of credit issued by First Union National Bank (the "BANK") in favor of the Holder in an original amount of $[ ](10), insofar a copy of which is annexed hereto as it relates Annex A (the "LETTER OF CREDIT"). The Company hereby acknowledges that the Holder and any subsequent Holder shall be entitled to a Purchase Agreement Default in respect the benefits of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming and covenants and agrees that it will not impair the Purchaser as beneficiary for an amount equal to Holder's rights under the LC Amount. Such Letter of Credit shall be delivered and (except to the Purchaser concurrently with the execution of this Agreement, and the Vendor extent provided in Section 2(b)) shall maintain the Letter of Credit in full force and effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever The Holder agrees that the rights and remedies face amount of the Purchaser Letter of Credit shall be reduced from time to time pursuant to the terms set forth below:
(i) subsequent to each Conversion Date, the face amount of the Letter of Credit shall be reduced on the date on which the Holder receives the Underlying Shares it is entitled to receive subsequent to such Conversion Date pursuant to Section 6(e), by an amount equal to the principal amount of Debentures converted on such Conversion Date less any interest payment accreted to principal up to such date;
(ii) the face amount of the Letter of Credit shall be reduced by an amount equal to the Holder Prepayment Price or the Company Prepayment Price paid by the Company pursuant to the delivery of a Holder Prepayment Notice or Company Prepayment Notice, as applicable, as set forth in Section 8, upon receipt by the Holder of such payment; and
(iii) on the Final Release Date and its Additional Indemnities otherwise available provided that: (A) the Equity Conditions are satisfied on such date with respect to the Underlying Shares issuable upon conversion in this Article 9.full of the then outstanding principal amount of Debentures and (B) the Underlying Shares issuable upon conversion in full of the then outstanding principal amount of Debentures ----------
Appears in 1 contract
Letter of Credit. The Restated Mortgage Note shall also be secured by a $500,000 irrevocable letter of credit to be provided to Seller by Buyer from Buyer's senior lender (a) the "Letter of Credit"). The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming will have a term of 19 months beginning on the Purchaser as beneficiary for an amount equal to the LC AmountClosing Date. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain Seller may not draw upon the Letter of Credit until maturity of the Restated Mortgage Note and then only under the terms and conditions set forth in effectthis Section 2.7(d). If an event of default exists upon maturity of the Restated Mortgage Note other than non-payment of principal and the Restated Mortgage Note is not refinanced as provided in Section 2.7(c), including by way the term of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides will be extended and Buyer may draw upon the Vendor with a Notice Letter of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but Credit only to the extent of such Indemnified Losses or if the proceeds from a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry sale of the then outstanding Letter Medina Real Property upon foreclosure do not satisfy Buyer's outstanxxxx xbligations under the Restated Mortgage Note. If Buyer refinances with Seller as set forth in Section 2.7(c), upon execution and delivery of Credit; providedthe Subsequent Note and the Subsequent Mortgage, that, the Vendor shall maintain Seller may draw upon the Letter of Credit for up to the full LC Amount in effect for lesser of (i) the entire LC Claim Period notwithstanding that amount of the Purchaser may have presented a Letter of Credit or (ii) the amount outstanding under the Restated Mortgage Note immediately prior to execution and delivery of the Subsequent Note and the Subsequent Mortgage, with the amount drawn being applied against the Subsequent Note. If Buyer has made a good faith claim for payment earlier indemnification in excess of the LC Claim Period. At any cash portion of the Escrow Funds that is unresolved at the time after the Closing Date, the Vendor may, in lieu of Seller makes a draw upon the Letter of Credit, secure its obligations under Section 9.2(c)the funds drawn, xx xx xxx amount by providing environmental insurance wherein which the insurer (who shall amount of the claim exceeds the cash portion of the Escrow Amount, will be satisfactory paid to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for Escrow Agent and held as Escrow Funds under the remainder terms of the LC Claim Period, PEC, Escrow Agreement. Any reduction of the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory Subsequent Note under this Section shall first be made to the Purchaser, acting reasonably, having regard first note (referred to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insuranceSection 2.7(c)). The Purchaser shall grant reasonable access to Letter of Credit will contain the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights terms and remedies of the Purchaser and its Additional Indemnities otherwise available conditions set forth in this Article 9Section 2.7(d) and otherwise will be in form acceptable to both Seller and Buyer's senior lender.
Appears in 1 contract
Samples: Purchase Agreement (Genesee Corp)
Letter of Credit. A. Tenant has deposited with Owner, or the then holder(s) of the Mortgage, as the case may be, at the time of the execution and delivery of this Lease, an unconditional, irrevocable letter of credit in the form attached hereto and made a part hereof as Exhibit 5, issued by The Chase Manhattan Bank (asaid bank or any other bank selected by Tenant which is rated at least AA- by Moodys, or an equivalent rating by Standard & Poors or Fitch, and is a member of the New York Clearing House Association and having assets of at least THREE BILLION ($3,000,000,000.00) The Vendor DOLLARS, as it shall secure its obligations under Section 9.2(cbe increased pursuant to the provision of Subsection D is referred to as a "Bank"), insofar in favor of Owner, in the sum of DOLLARS in funds available immediately or same day funds in the City of New York, as security for the faithful observance and performance by Tenant of the terms, covenants and conditions of this Lease on Tenant's part to be observed and performed. Such letter of credit is for a term of not less than one (1) year which term shall be automatically renewed for successive one (1) year terms, unless the Bank gives not less than sixty (60) days prior written notice to Owner that it relates will not so renew the letter of credit for such successive term and the last term of the letter of credit shall end not less than sixty (60) days after the Expiration Date. If such letter of credit is not automatically renewed as aforesaid, Tenant agrees to a Purchase Agreement Default cause the Bank to either (i) renew such letter of credit, from time to time, during the Demised Term or (ii) replace it, in respect either case upon the same terms and conditions and at least sixty (60) days prior to the expiration of said letter of credit or any renewal or replacement. In the event of any transfer of said letter of credit pursuant to Section 5.1(ii51.05, and notice off such transfer to Tenant, Tenant, within twenty (20) days thereafter (with Owner responsible for the customary transfer costs therefor), shall cause a new letter of credit to be issued by said Bank in favor of the transferee, upon the same terms and Section 9.2(dconditions, in replacement of the letter of credit so transferred and Owner agrees that, simultaneously with the delivery of such new letter of credit, it will return to said Bank the letter of credit being replaced. The letters of credit deposited hereunder, and all renewals and replacements, are referred to, collectively, as the "Letter of Credit". The parties acknowledge and agree that (xx) by providing the Purchaser with a there may be more than one (1) Letter of Credit naming and (yy) there may be more than one (1) Bank at the Purchaser as beneficiary for same time to comply with the provisions of this Article, provided that the utilization of more than one (1) Letter of Credit and/or one (1) Bank shall otherwise be in accordance with, and comply with, all of the provisions of this Article. To the extent Tenant delivers a discrete Letter of Credit in an amount equal to DOLLARS, the LC Amountsame shall be referred to herein as the "Additional Rent Letter of Credit". Such Tenant shall have the right from time to time to replace the Letter of Credit and the Additional Rent Letter of Credit with a new Letter of Credit and, at Tenant's option, an Additional Rent Letter of Credit issued by one or more Banks upon the same terms and conditions. The Letter of Credit shall be delivered held by Owner, or by the holder(s) of the Mortgage, as the case may be, for the purposes set forth in this Article and shall not be transferred except for transfer (a) to an agent of the Bank for collection, or (b), pursuant to the Purchaser concurrently provisions of Section 51.05. In the event Tenant defaults beyond any applicable grace period hereunder in the performance of its obligations to issue a replacement Letter of Credit, or in the observance or performance of Tenant's agreement to cause the Bank to renew the Letter of Credit, Owner or the holder(s) of the Mortgage, as the case may be, shall have the right to require the Bank to make payment to Owner of the entire sum of DOLLARS or the undrawn portion thereof, as the case may be, represented by the Letter of Credit, which sum shall be held by Owner as Cash Security (as said term is hereinafter defined) in accordance with the execution provisions of this Agreement, and Article. If payment of the Vendor shall maintain entire sum of DOLLARS or the undrawn portion thereof is made to Owner by reason of Tenant's failure to renew or replace the Letter of Credit in effectaccordance with the foregoing provisions of this Article, including by way Owner shall have the right, at any time on behalf of renewals for the entire LC Claim PeriodTenant, from time to time prior to its expiry date. The Purchaser will be entitled to present such replace said Cash Security with a new Letter of Credit for payment if it provides issued by the Vendor with Bank or any other bank selected by Owner, in Owner's sole discretion, and Tenant hereby irrevocably constitutes and appoints Owner as Tenant's agent and attorney-in-fact to cause the Bank or any such other bank selected by Owner to issue such a Notice replacement Letter of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Credit. The Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit provides for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.partial drawings
Appears in 1 contract
Samples: Sub Sublease Agreement (Eyetech Pharmaceuticals Inc)
Letter of Credit. (a) The Vendor shall secure its Subject to the terms and conditions of this Agreement, the Issuing Lender agrees to issue letters of credit for the account of Borrower (each, an "L/C") or to purchase participations or execute indemnities or reimbursement obligations under Section 9.2(c(each such undertaking, an "L/C Undertaking") with respect to letters of credit issued by an Underlying Issuer (as of the Closing Date, the prospective Underlying Issuer is to be Xxxxx Fargo) for the account of Borrower. To request the issuance of an L/C or an L/C Undertaking (or the amendment, renewal, or extension of an outstanding L/C or L/C Undertaking), insofar Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the Issuing Lender) to the Issuing Lender and Agent (reasonably in advance of the requested date of issuance, amendment, renewal, or extension) a notice requesting the issuance of an L/C or L/C Undertaking, or identifying the L/C or L/C Undertaking to be amended, renewed, or extended, the date of issuance, amendment, renewal, or extension, the date on which such L/C or L/C Undertaking is to expire, the amount of such L/C or L/C Undertaking, the name and address of the beneficiary thereof (or the beneficiary of the Underlying Letter of Credit, as it relates to a Purchase Agreement Default in respect of Section 5.1(iiapplicable), and Section 9.2(d) such other information as shall be necessary to prepare, amend, renew, or extend such L/C or L/C Undertaking. If requested by providing the Purchaser Issuing Lender, Borrower also shall be an applicant under the application with respect to any Underlying Letter of Credit that is to be the subject of an L/C Undertaking. The Issuing Lender shall have no obligation to issue a Letter of Credit naming if any of the Purchaser following would result after giving effect to the requested Letter of Credit:
(i) the Letter of Credit Usage would exceed the Borrowing Base less the amount of outstanding Advances, or
(ii) the Letter of Credit Usage would exceed $5,000,000, or
(iii) the Letter of Credit Usage would exceed the Maximum Revolver Amount less the then extant amount of outstanding Advances. Borrower and the Lender Group acknowledge and agree that certain Underlying Letters of Credit may be issued to support letters of credit that already are outstanding as beneficiary for of the Closing Date and that each Letter of Credit issued under the Post-Petition Loan Agreement which is outstanding as of the Closing Date is deemed issued hereunder. Each Letter of Credit (and corresponding Underlying Letter of Credit) shall be in form and substance acceptable to the Issuing Lender (in the exercise of its Permitted Discretion), including the requirement that the amounts payable thereunder must be payable in Dollars. If Issuing Lender is obligated to advance funds under a Letter of Credit, Borrower immediately shall reimburse such L/C Disbursement to Issuing Lender by paying to Agent an amount equal to such L/C Disbursement not later than 11:00 a.m., California time, on the LC Amountdate that such L/C Disbursement is made, if Borrower shall have received written or telephonic notice of such L/C Disbursement prior to 10:00 a.m., California time, on such date, or, if such notice has not been received by Borrower prior to such time on such date, then not later than 11:00 a.m., California time, on the Business Day that Borrower receives such notice, if such notice is received prior to 10:00 a.m., California time, on the date of receipt, and, in the absence of such reimbursement, the L/C Disbursement immediately and automatically shall be deemed to be an Advance hereunder and, thereafter, shall bear interest at the rate then applicable to Advances that are Base Rate Loans under Section 2.6. Such To the extent an L/C Disbursement is deemed to be an Advance hereunder, Borrower's obligation to reimburse such L/C Disbursement shall be discharged and replaced by the resulting Advance. Promptly following receipt by Agent of any payment from Borrower pursuant to this paragraph, Agent shall distribute such payment to the Issuing Lender or, to the extent that Lenders have made payments pursuant to Section 2.12(c) to reimburse the Issuing Lender, then to such Lenders and the Issuing Lender as their interest may appear.
(b) Promptly following receipt of a notice of L/C Disbursement pursuant to Section 2.12(a), each Lender with a Revolver Commitment agrees to fund its Pro Rata Share of any Advance deemed made pursuant to the foregoing subsection on the same terms and conditions as if Borrower had requested such Advance and Agent shall promptly pay to Issuing Lender the amounts so received by it from the Lenders. By the issuance of a Letter of Credit shall be delivered (or an amendment to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Lender or the Lenders with Revolver Commitment, the Issuing Lender shall be deemed to have granted to each Lender with a Revolver Commitment, and each Lender with a Revolver Commitment shall be deemed to have purchased, a participation in effecteach Letter of Credit, including by way in an amount equal to its Pro Rata Share of renewals the Risk Participation Liability of such Letter of Credit, and each such Lender agrees to pay to Agent, for the entire LC Claim Periodaccount of the Issuing Lender, from time such Lender's Pro Rata Share of any payments made by the Issuing Lender under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender with a Revolver Commitment hereby absolutely and unconditionally agrees to time prior pay to Agent, for the account of the Issuing Lender, such Lender's Pro Rata Share of each L/C Disbursement made by the Issuing Lender and not reimbursed by Borrower on the date due as provided in clause (a) of this Section, or of any reimbursement payment required to be refunded to Borrower for any reason. Each Lender with a Revolver Commitment acknowledges and agrees that its obligation to deliver to Agent, for the account of the Issuing Lender, an amount equal to its expiry daterespective Pro Rata Share pursuant to this Section 2.12(b) shall be absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default or Default or the failure to satisfy any condition set forth in Section 3 hereof. The Purchaser will be entitled If any such Lender fails to present make available to Agent the amount of such Lender's Pro Rata Share of any payments made by the Issuing Lender in respect of such Letter of Credit as provided in this Section, Agent (for payment if it provides the Vendor account of the Issuing Lender) shall be entitled to recover such amount on demand from such Lender together with a Notice of Claim for Indemnified Losses pursuant interest thereon at the Defaulting Lender Rate until paid in full.
(c) Borrower hereby agrees to Section 9.2(c)indemnify, insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii)save, defend, and hold the Lender Group harmless from any loss, cost, expense, or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided liability, and reasonable attorneys fees incurred by the Vendor to the Purchaser at least 30 days prior to the expiry Lender Group arising out of the then outstanding or in connection with any Letter of Credit; provided, thathowever, that Borrower shall not be obligated hereunder to indemnify for any loss, cost, expense, or liability that is caused by the Vendor gross negligence or willful misconduct of the Issuing Lender or any other member of the Lender Group. Borrower agrees to be bound by the Underlying Issuer's regulations and interpretations of any Underlying Letter of Credit or by Issuing Lender's interpretations of any L/C issued by Issuing Lender to or for Borrower's account, even though this interpretation may be different from Borrower's own, and Borrower understands and agrees that the Lender Group shall maintain not be liable for any error, negligence, or mistake, whether of omission or commission, in following Borrower's instructions or those contained in the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding or any modifications, amendments, or supplements thereto. Borrower understands that the Purchaser L/C Undertakings may have presented require Issuing Lender to indemnify the Underlying Issuer for certain costs or liabilities arising out of claims by Borrower against such Underlying Issuer. Borrower hereby agrees to indemnify, save, defend, and hold the Lender Group harmless with respect to any loss, cost, expense (including reasonable attorneys fees), or liability incurred by the Lender Group under any L/C Undertaking as a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu result of the Letter Lender Group's indemnification of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessorsUnderlying Issuer; provided, however, that Borrower shall not be obligated hereunder to indemnify for any loss, cost, expense, or liability that is caused by the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to gross negligence or willful misconduct of the non-PNG information to Issuing Lender or any such insurerother member of the Lender Group.
(bd) Section 9.8(aBorrower hereby authorizes and directs any Underlying Issuer to deliver to the Issuing Lender all instruments, documents, and other writings and property received by such Underlying Issuer pursuant to such Underlying Letter of Credit and to accept and rely upon the Issuing Lender's instructions with respect to all matters arising in connection with such Underlying Letter of Credit and the related application.
(e) Any and all charges, commissions, fees, and costs incurred by the Issuing Lender relating to Underlying Letters of Credit shall not impairbe Lender Group Expenses for purposes of this Agreement and immediately shall be reimbursable by Borrower to Agent for the account of the Issuing Lender; it being acknowledged and agreed by Borrower that, effect or limit as of the Closing Date, the issuance charge imposed by the prospective Underlying Issuer is .825% per annum times the face amount of each Underlying Letter of Credit, that such issuance charge may be changed from time to time, and that the Underlying Issuer also imposes a schedule of charges for amendments, extensions, drawings, and renewals.
(f) If by reason of (i) any change in any way whatsoever applicable law, treaty, rule, or regulation or any change in the rights and remedies interpretation or application thereof by any Governmental Authority, or (ii) compliance by the Underlying Issuer or the Lender Group with any direction, request, or requirement (irrespective of whether having the force of law) of any Governmental Authority or monetary authority including, Regulation D of the Purchaser Federal Reserve Board as from time to time in effect (and its Additional Indemnities otherwise available any successor thereto):
(i) any reserve, deposit, or similar requirement is or shall be imposed or modified in respect of any Letter of Credit issued hereunder, or
(ii) there shall be imposed on the Underlying Issuer or the Lender Group any other condition regarding any Underlying Letter of Credit or any Letter of Credit issued pursuant hereto,
(g) and the result of the foregoing is to increase, directly or indirectly, the cost to the Lender Group of issuing, making, guaranteeing, or maintaining any Letter of Credit or to reduce the amount receivable in respect thereof by the Lender Group, then, and in any such case, Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify Borrower, and Borrower shall pay on demand such amounts as Agent may specify to be necessary to compensate the Lender Group for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the Base Rate Loans. The determination by Agent of any amount due pursuant to this Article 9Section, as set forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto.
Appears in 1 contract
Letter of Credit. (a) Subject to the terms and conditions hereof, Agent shall (a) from time to time issue or cause the L/C Issuer to issue Letters of Credit for the account of Borrower; PROVIDED, HOWEVER, that Agent will not be required to issue or cause to be issued any Letters of Credit to the extent that the issuance of such Letters of Credit would then cause the sum of (i) the outstanding Revolving Loans PLUS (ii) the Letter of Credit Obligations (with the requested Letter of Credit being deemed to be outstanding for purposes of this calculation) to exceed the lesser of (x) the Revolving Loan Commitment or (y) the Borrowing Base in effect prior to the issuance of the requested Letter of Credit. The Vendor maximum amount of outstanding Letters of Credit shall secure its obligations under Section 9.2(c)not exceed One Million Five Hundred Thousand Dollars ($1,500,000) in the aggregate at any time. Each disbursement or payment by the L/C Issuer or Agent related to Letters of Credit shall be deemed to be a Revolving Loan and shall bear interest as a Prime Rate Revolving Loan. Letters of Credit that have not been drawn upon shall not bear interest.
(b) Borrower may from time to time upon notice not later than 12:00 Noon, insofar as it relates Chicago time, at least three (3) Business Days in advance, request Agent to a Purchase Agreement Default assist Borrower in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with establishing or opening a Letter of Credit naming by delivering to Agent at the Purchaser as beneficiary for an amount equal Payment Office, the L/C Issuer's standard form of letter of credit application (the "Letter of Credit Application") completed to the LC Amountsatisfaction of the L/C Issuer; and, such other certificates, documents and other papers and information as Agent may reasonably request.
(c) Each Letter of Credit shall, among other things, (i) provide for the payment of sight drafts when presented for honor thereunder in accordance with the terms thereof and when accompanied by the documents described therein and (ii) have an expiry date not later than twelve (12) months after such Letter of Credit's date of issuance and in no event later than the last day of the Term. Such Each Letter of Credit Application and each Letter of Credit shall be delivered subject to (x) the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500, and any amendments or revision thereof in connection with any documentary letter of Credit and (y) ISP 98 in connection with any standby Letter of Credit, or with respect to any Letter of Credit Application or Letter of Credit, any other rules, regulations and customs prevailing at the place where any such Letter of Credit Application is made or where any such Letter of Credit is available or the drafts are drawn or negotiated and, to the Purchaser concurrently extent not inconsistent therewith, the laws of the State of New York.
(d) In connection with the execution issuance of this Agreementany Letter of Credit, Borrower shall indemnify, save and hold Agent, each Lender and each L/C Issuer harmless from any loss, cost, expense or liability, including, without limitation, payments made by Agent, any Lender or any L/C Issuer, and expenses and reasonable attorneys' fees incurred by Agent, any Lender or any L/C Issuer arising out of, or in connection with, any Letter of Credit to be issued for the Vendor account of Borrower. Borrower shall maintain be bound by the L/C Issuer's regulations and good faith interpretations of any Letter of Credit issued or created for Borrower's account, although this interpretation may be different from Borrower's own; and, neither Agent nor any Lender, any L/C Issuer, nor any of its correspondents shall be liable for any error, negligence, or mistakes, whether of omission or commission, in following Borrower's instructions or those contained in any Letter of Credit or of any modifications, amendments or supplements thereto or in issuing or paying any Letter of Credit, except for Agent's or any Lender's or such correspondents' gross (not mere) negligence or willful misconduct.
(e) Borrower shall authorize and direct the L/C Issuer to name Borrower as the "Account Party" therein and to deliver to Agent all instruments, documents, and other writings and property received by the L/C Issuer pursuant to the Letter of Credit and to accept and rely upon Agent's instructions and agreements with respect to all matters arising in effectconnection with the Letter of Credit and the application therefor.
(f) In connection with all Letters of Credit issued or caused to be issued by Agent under this Agreement, including by way Borrower hereby appoints Agent, or its designee, as its attorney, with full power and authority, exercisable after the occurrence and continuance of renewals an Event of Default (i) to sign and/or endorse Borrower's name upon any warehouse or other receipts, letter of credit applications and acceptances; (ii) to sign Borrower's name on bills of lading; (iii) to clear Inventory through the United States of America Customs Department ("Customs") in the name of Borrower or Agent or Agent's designee, and to sign and deliver to Customs officials powers of attorney in the name of Borrower for such purpose; (iv) to complete in the entire LC Claim Periodname of Agent, from or Agent's designee, any order, sale or transaction, obtain the necessary documents in connection therewith, and collect the proceeds thereof; (v) to clear and resolve any questions of non-compliance of documents; (vi) to give any instructions as to acceptance or rejection of any documents or goods; (vii) to execute any and all applications for steamship or airways guarantees, indemnities or delivery orders; (viii) to grant any extensions of the maturity of, time of payment for, or time of presentation of, any drafts, acceptances, or documents; and (ix) to time prior agree to its expiry date. The Purchaser will any amendments, renewals, extensions, modifications, changes or cancellation of any of the terms or conditions of any of the applications, Letters of Credit, drafts or acceptances; all in Agent's sole name, and the L/C Issuer shall be entitled to comply with and honor any and all such documents or instruments executed by or received solely from Agent; all without notice to or consent from Borrower. Neither Agent nor its attorneys will be liable for any acts or omissions nor for any error of judgment or mistakes of fact or law, except for Agent's or its attorney's gross (not mere) negligence or willful misconduct. This power, being coupled with an interest, is irrevocable as long as any Letters of Credit remain outstanding.
(g) Neither Agent nor any Lender shall be responsible for: the existence, character, quality, quantity, condition, packing, value or delivery of the goods purporting to be represented by any documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of the goods from that expressed in the documents; the validity, sufficiency or genuineness of any documents or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent, or forged; the time, place, manner or order in which shipment is made; partial or incomplete shipment, or failure or omission to ship any or all of the goods referred to in the Letters of Credit or documents; any deviation from instructions, delay, default, or fraud by the shipper and/or any one else in connection with the Collateral or the shipping thereof; or any breach of contract between the shipper or vendors and Borrower.
(h) Any necessary import, export or other licenses or certificates for the import or handling of the Collateral will have been promptly procured; all foreign and domestic governmental laws and regulations in regard to the shipment and importation of the Collateral or the financing thereof will have been promptly and fully complied with; any certificates in that regard that Agent may at any time request will be promptly furnished. In this connection, Borrower warrants and represents that all shipments made under any such Letters of Credit are in accordance with the governmental laws and regulations of the countries in which the shipments originate and terminate, and are not prohibited by any such law and regulations. Borrower assumes all risk, liability and responsibility for, and agrees to pay and discharge all present and future local, state, federal or foreign taxes, duties, or levies. Any embargo, restriction, laws, customs or regulations of any country, state, city or other political subdivision where the Collateral is or may be located or wherein payments are to be made or wherein drafts may be drawn, negotiated, accepted, or paid shall be solely at Borrower's risk, liability and responsibility.
(i) Each Lender shall to the extent of the percentage amount equal to the product of such Lender's Commitment Percentage times the aggregate amount of all disbursements made with respect to the Letters of Credit be deemed to have irrevocably purchased an undivided participation in each Revolving Loan made as a consequence of such disbursement. In the event that at the time a disbursement is made the unpaid balance of Revolving Loans exceeds or would exceed, with the making of such disbursement, the lesser of the Revolving Loan Commitment or the Borrowing Base, and such disbursement is not reimbursed by Borrower within two (2) Business Days, Agent shall promptly notify each Lender and upon Agent's demand each Lender shall pay to Agent such Lender's proportionate share of such unreimbursed disbursement together with such Lender's proportionate share of Agent's unreimbursed costs and expenses relating to such unreimbursed disbursement. Upon receipt by Agent of a repayment from Borrower of any amount disbursed by Agent for which Agent had already been reimbursed by the Lenders, Agent shall deliver to each of the Lenders that Lender's pro rata share of such repayment. Each Lender's participation commitment shall continue until the last to occur of any of the following events: (A) Agent ceases to be obligated to issue or cause the issuance of Letters of Credit hereunder; (B) no Letter of Credit issued hereunder remains outstanding and uncancelled or (C) all Persons (other than Borrower) have been fully reimbursed for all payments made under or relating to Letters of Credit.
(j) The obligations of a Lender to make payments to the Agent for the account of the Agent or the L/C Issuer with respect to a Letter of Credit shall be irrevocable, without any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the Other Agreements;
(ii) the existence of any claim, setoff, defense or other right which Borrower may have at any time against a beneficiary named in such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent any transferee of such Indemnified Losses or if a renewal Letter of Credit is not provided by (or any Person for which any such transferee may be acting), the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Agent, L/C Issuer, any Lender, or any other person, whether in connection with this Agreement, such Letter of Credit; provided, that, the Vendor shall maintain transactions contemplated herein or any related transactions (including any underlying transactions between Borrower or any other party and the beneficiary named in such Letter of Credit);
(iii) any draft, certificate or any other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of this Agreement or any of the Other Agreements;
(v) any failure by the Agent to provide any notices required pursuant to this Agreement relating to such Letter of Credit;
(vi) any payment by the L/C Issuer under any of the Letters of Credit against presentation of a draft or certificate which does not comply with the terms of such Letter of Credit (if, in the good faith opinion of the L/C Issuer, such prepayment is deemed to be appropriate); or
(vii) the occurrence of any Default or Event of Default, PROVIDED, HOWEVER, that after paying in full LC Amount in effect its reimbursement obligation hereunder, nothing herein shall adversely affect the right of Borrower or any Lender, as the case may be, to commence any proceeding against such L/C Issuer for the entire LC Claim Period notwithstanding that the Purchaser may have presented any wrongful disbursement made by such L/C Issuer under a Letter of Credit for payment earlier in as a result of acts or omissions constituting gross (not mere) negligence or willful misconduct on the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu part of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerL/C issuer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Loan and Security Agreement (Security Capital Corp/De/)
Letter of Credit. (ai) On the Closing Date the Lessee shall ---------------- provide to Owner Trustee, and at all times on and after the Closing Date to and including the date which is 30 days after the Basic Lease Term Termination Date or earlier termination of the Lease, the Lessee shall continue to provide to the Owner Trustee, an irrevocable, unconditional letter of credit satisfying the requirements set forth in clause (ii) of this Section (the "Letter of Credit"). ----------------
(ii) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming (A) shall be in favor of the Purchaser as beneficiary for an amount equal Owner Trustee, (B) shall be issued by a banking institution domiciled in the United States or a U.S. branch or agency (which agency shall be acceptable to the LC AmountOwner Participant) of a foreign banking institution, in each case whose long-term senior unsecured debt obligations are rated "A" or better by Standard & Poor's at the time the Letter of Credit is issued (the Person issuing the Letter of Credit being herein referred to as the "Issuing ------- Bank"), (C) shall ---- 25 be in a stated amount of $10,000,000 (or such higher stated amount as may be required pursuant to clause (iii) of this Section 6.01(h)), (D) shall be payable at an office of the Issuing Bank in New York, New York, (E) shall have a stated expiration date of not earlier than 360 days after the date of original issuance or any extension or renewal thereof, (F) shall permit the beneficiary thereof to transfer its interest therein without the consent of the Issuing Bank or the Lessee, and (G) shall be substantially in the form of Exhibit A hereto or otherwise in form and substance satisfactory to the Owner Trustee.
(iii) If at any time the long-term senior unsecured debt obligations of the Issuing Bank shall cease to have an "A-" or better rating by Standard & Poor's, the Lessee shall, promptly (and in any event within 10 days) after the earlier of (A) the giving of notice by the Owner Trustee or the Owner Participant to the Lessee of such cessation and (B) a Responsible Officer of the Lessee obtaining actual knowledge of such cessation, replace the Letter of Credit with a replacement Letter of Credit satisfying the requirements set forth in clause (ii) of this Section. Such Upon its receipt of such replacement Letter of Credit, the Owner Trustee shall surrender the original Letter of Credit being replaced to the issuer of the Letter of Credit being replaced. In addition, the Lessee shall, at least 10 Business Days prior to the stated expiration date of any Letter of Credit, deliver to the Owner Trustee a replacement Letter of Credit, or a renewal or extension of such expiring Letter of Credit, in either case satisfying the requirements set forth in clause (ii) of this Section 6.01(h). If at any time Lessee's senior secured debt shall cease to have both a "BB" or better rating by Standard & Poor's and a "Ba2" or better rating by Xxxxx'x, the Letter of Credit shall be delivered required to the Purchaser concurrently with the execution be in a stated amount of this Agreement$15,000,000, and the Vendor shall maintain Lessee shall, promptly (and in any event within 10 Business Days) after the earlier of (A) the giving of notice by the Owner Trustee or the Owner Participant of such cessation and (B) a responsible Officer of the Lessee obtaining actual knowledge of such cessation, replace the Letter of Credit with an amended Letter of Credit or a replacement Letter of Credit satisfying the requirements set forth in effectclause (ii) of this Section 6.01(h).
(iv) At the time of issuance of any Letter of Credit, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice shall be accompanied by an opinion of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only counsel to the extent of Issuing Bank as to due authorization, execution and delivery by and enforceability against such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessorsIssuing Bank; provided, however, that such opinion of counsel -------- ------- shall not be required in case of renewal or extension of an existing Letter of Credit with the Vendor shall be solely liable for all premiums and related costs associated with issuer of such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerexisting Letter of Credit.
(bv) The Lessee shall give the Owner Trustee and the Owner Participant notice of the scheduled expiration of each Letter of Credit not less than 45 days before its scheduled expiration date.
(vi) The Owner Trustee may make partial or full drawings under the Letter of Credit (A) at any time an Event of Default has occurred and is continuing, or (B) if the Letter of Credit is not extended or renewed, or replaced by another Letter of Credit satisfying the requirements set forth in clause (ii) of this Section 9.8(a6.01(h), in each case in accordance with clause (iii) of this Section 6.01(h) (each of the events or circumstances referred to in clause (A) or (B) of this sentence being referred to as a "Drawing Event"). If the proceeds of any drawing by the -------------- Owner Trustee under the Letter of Credit exceed the amounts due and owing by the Lessee under the Basic Agreements, such excess (together with any interest or gain thereon) shall not impair, effect or limit in any way whatsoever be held by the rights Owner Trustee as collateral security for the Lessee's obligations under the Basic Agreements and remedies may be applied by the Owner Trustee to satisfy the obligations of the Purchaser Lessee under the Basic Agreements. If the amount of such proceeds held by the Owner Trustee exceeds $100,000, such proceeds shall be invested from time to time in Permitted Investments as directed in writing by Lessee (or, in the absence of a timely direction, in Permitted Investments specified in clause (i), (ii) or (viii) of the definition of the term "Permitted Investments"), and its Additional Indemnities otherwise available at the expense and risk of the Lessee. Any income or gain realized as a result of any such investment shall be applied to make up any losses resulting from any such investment to the extent such losses shall not have been recovered from Lessee, as provided below in this Article 9clause (vi), and any balance shall be held and applied as above provided. Upon incurring any losses from any such investment, which losses are not made up from income or gain as aforesaid, the Owner Trustee shall promptly notify the Lessee thereof and, upon receipt of such notice, the Lessee shall promptly pay to the Owner Trustee the amount of such loss. Neither the Owner Trustee nor the Owner Participant shall have any liability for any loss resulting from any such investment. Any such investment may be sold (without regard to maturity date) by the Owner Trustee whenever necessary to make any payment of Rent required by any Basic Agreement.
(vii) Notwithstanding the foregoing, the Lessee shall not be required to provide the Letter of Credit hereunder if and so long as all of the following are satisfied: (A) no Default or Event of Default shall have occurred and be continuing; and (B) Lessee's senior secured debt shall be rated both "BBB" or better by Standard & Poor's and "Baa2" or better by Xxxxx'x. It is understood and agreed that if the Lessee does not have a rated senior secured debt for the purposes of this provision, a private rating may be obtained from Standard and Poor's and Xxxxx'x, and if and so long as such private ratings shall be at least the equivalent of the ratings set forth in clause (B) of the preceding sentence, then clause (B) of the preceding sentence shall be deemed to be satisfied.
Appears in 1 contract
Letter of Credit. (a) The Vendor shall secure Subject to and upon the terms and conditions herein set forth, the Borrower may request that the Issuing Lender issue, at any time and from time to time on and after the Closing Date and prior to the Termination Date, for the account of the Borrower and for the benefit of any holder (or any trustee, agent or other similar representative for any such holders) of L/C Supportable Obligations of the Borrower, an irrevocable standby letter of credit, in a form customarily used by the Issuing Lender or in such other form as has been approved by the Issuing Lender in its obligations under Section 9.2(c)discretion (each such standby letter of credit, insofar as a "Letter of Credit") in support of such L/C Supportable Obligations.
(b) Subject to the terms and conditions contained herein, the Issuing Lender hereby agrees that it relates will, at any time and from time to a Purchase Agreement Default in respect time on or after the Closing Date and prior to the Termination Date, following its receipt of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a respective Letter of Credit naming Request, issue for the Purchaser account of the Borrower one or more Letters of Credit in support of such L/C Supportable Obligations of the Borrower as beneficiary for an amount equal are permitted to remain outstanding without giving rise to a Default or Event of Default hereunder, provided that the Issuing Lender shall be under no obligation to issue any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or arbitrator shall purport by its terms to enjoin or restrain the Issuing Lender from issuing such Letter of Credit or any requirement of law applicable to the LC Amount. Such Issuing Lender or any request or directive (whether or not having the force of law) from any governmental authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Lender with respect to such Letter of Credit any restriction or reserve or capital requirement (for which the Issuing Lender is not otherwise compensated) not in effect on the date hereof, or any unreimbursed loss, cost or expense which was not applicable, or known to the Issuing Lender as of the date hereof and which the Issuing Lender in good faitx xxxxx xxxerial to it; or
(ii) the Issuing Lender shall have received notice from any Lender prior to the issuance of such Letter of Credit of the type described in the second sentence of Section 2.19(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be delivered issued the Stated Amount of which, when added to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effectOutstandings (exclusive of Unpaid Drawings which are repaid on the date of, including by way of renewals for the entire LC Claim Period, from time to time and prior to the issuance of, the respective Letter of Credit) and the aggregate principal amount of all Loans then outstanding, would exceed the lesser of (x) the Commitments at such time and (y) the Borrowing Base at such time, (ii) each Letter of Credit shall be denominated in Dollars, (iii) each Letter of Credit shall by its expiry date. The Purchaser will be entitled to present terms terminate on or before the earlier of (A) the date which occurs 12 months after the date of the issuance thereof (although any such Letter of Credit may be automatically extendable for payment if it provides successive periods of up to 12 months, but not beyond the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only tenth Business Day prior to the extent Termination Date, on terms acceptable to the Issuing Lender) and (B) the tenth Business Day prior to the Termination Date, (iv) the Stated Amount of such Indemnified Losses or if a renewal each Letter of Credit upon issuance shall be not less than $100,000 or such lesser amount as is not provided by the Vendor acceptable to the Purchaser at least 30 days prior to the expiry of the then outstanding Issuing Lender and (v) no Letter of Credit; providedCredit shall be issued the Stated Amount of which, that, the Vendor shall maintain when added to (y) the Letter of Credit for Outstandings (exclusive of Unpaid Drawings which are repaid on the full LC Amount in effect for date of, and prior to the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Dateissuance of, the Vendor may, in lieu of the respective Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer ) and (who shall be satisfactory to the Purchaser, acting reasonablyz) agrees to unconditionally indemnify, any Loans made for the remainder working capital purposes would exceed 10% of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has total Commitments then in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurereffect.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Revolving Credit Agreement (Felcor/Lax Holdings Lp)
Letter of Credit. (a) 50.1 It is the intention that along with the execution of this Lease by Xxxxxx, the delivery by Lessee to Lessor of the Base Rent to be paid on execution of the Lease and the Security Deposit to be paid by Lessee to Lessor, Lessee shall also deliver to Lessor an irrevocable letter of credit in the amount of $101,040.00 payable to Lessor, issued by a bank reasonably acceptable to Lessor, upon terms and condition that would allow Lessor to draw upon the same in the event of Xxxxxx's Breach under the Lease. The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect form of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC Amount. Such Letter of Credit shall be delivered that set forth in Exhibit B attached hereto and shall be automatically renewed annually unless otherwise notified.
50.2 In the event the Lessee shall Breach the Lease in the payment or performance of its obligations under this Lease and Lessor shall exercise its rights under said letter of credit then, within 10 days after Lessor shall draw down on the letter of credit, Lessee shall either pay to Lessor an amount equal to that received by Lessor under the Purchaser concurrently letter of credit which payment by Lessee to Lessor shall be held as an additional Security Deposit under Paragraph 5 of the Lease or Lessee will deliver to Lessor a letter of credit in said amount under the same terms and conditions as Paragraph 50.1 hereof.
50.3 Prior to June 30, 2000 Lessee shall provide Lessor with an audited financial statement which accurately reflects Xxxxxx's current shareholders equity. Said financial statement shall be called Xxxxxx's Financial Statement at Commencement.
50.4 At the execution end of this Agreementthe twenty-fourth (24th) month of the Lease term if a new audited financial statement indicates that Xxxxxx's shareholders equity is equal to or greater than its shareholders equity in the Lessee's Financial Statement at Commencement, and the Vendor shall maintain requirement of the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter waived and said letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided credit held by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who Lessor shall be satisfactory returned to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerLessee.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(c)In lieu of the Security Deposit, insofar as it relates Sublessee, at Sublessee’s sole cost and expense, may have issued and delivered to a Purchase Agreement Default Sublessor upon execution of this Sublease by Sublessee, an irrevocable stand-by letter of credit in respect the amount of Section 5.1(ii), Twenty-Eight Thousand Nine Hundred Sixty and Section 9.2(d00/100 Dollars ($28,960.00) by providing (the Purchaser with a “Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC AmountCredit”). Such The Letter of Credit shall be delivered issued by a bank reasonably acceptable to Sublessor and shall otherwise be in such form and contain such terms as are reasonably acceptable to Sublessor. Upon and during the Purchaser concurrently with the execution existence of this Agreementa default by Sublessee hereunder, Sublessor may, in addition to all other rights and the Vendor shall maintain remedies afforded Sublessor hereunder or by law, cash the Letter of Credit or any portion thereof and use and hold the proceeds of same as a cash security deposit in effectaccordance with Section 4.05(b) below, including by way after applying such sums against Sublessee’s obligations hereunder, without prejudice to any of renewals for the entire LC Claim Period, from time to time prior to its expiry dateSublessor’s other remedies. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit If Sublessee is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; providedin default hereunder, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time shall be returned by Sublessor to Sublessee within thirty (30) days after the Closing Date, the Vendor may, in lieu expiration or termination of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerthis Sublease.
(b) Section 9.8(a) Any proceeds of the Letter of Credit shall be held by Sublessor without liability for interest and as security for the performance by Sublessee of Sublessee’s covenants and obligations under this Sublease, it being expressly understood that such proceeds shall not impair, effect be considered an advance payment of Rent or limit a measure of Sublessor’s damages in any way whatsoever the rights and remedies case of the Purchaser failure by Sublessee in the performance of any of the terms and its Additional Indemnities otherwise available provisions hereof. Sublessor may, from time to time, without prejudice to any other remedy, use such proceeds to the extent necessary to make good any arrearages of Rent or other amounts due hereunder and any other damage, injury, expense or liability caused to Sublessor by such failure in this Article 9performance by Sublessee. Following any such application of such proceeds, Sublessee shall, within three (3) business days of Sublessee’s receipt of Sublessor’s demand, cause the Letter of Credit to be restored to the original amount described in Section 4.05(a) above.
Appears in 1 contract
Samples: Sublease Agreement (Sysorex, Inc.)
Letter of Credit. For as long as any amounts are outstanding under the Closing Letter of Credit or any Post-Closing Letter of Credit (collectively, the “ LOCs”), or Escrow Account, as applicable, any and all amounts payable by the Sellers as Indemnifying Parties to a Medtronic Indemnified Party shall be paid in cash first out of the LOCs or the Escrow Account, as applicable, and thereafter by the Sellers in accordance with payment instructions provided by the Buyer. The existence of the LOCs or the Escrow Account, as applicable, shall not be deemed to limit the amount of any allowable Claims by any Medtronic Indemnified Party pursuant to This Agreement for Losses in excess of the outstanding amounts under the LOCs or the Escrow Account, as applicable. The Sellers shall cause the principal amounts under each of the LOCs or the Escrow Account, as applicable, to remain outstanding until the earlier of (a) The Vendor such time as the entire principal amount of such LOC or the Escrow Account, as applicable, has been used to pay the Medtronic Indemnified Parties in accordance with a decision of the Arbitrator and (b) the fifth anniversary of the Closing and thereafter the funds in the Escrow Account shall secure its obligations be released to the Sellers or the LOCs shall be terminated, as the case may be; provided, that if any Claim seeking indemnification has been timely made in accordance with Section 9.4 (Time for Claims) but has not been finally determined by the Arbitrator by the fifth anniversary of the Closing, then the Sellers shall cause the principal amounts under Section 9.2(c)each of the LOCs or the Escrow Account, insofar as it relates applicable, to a Purchase Agreement Default remain outstanding until such final determination of each such Claim in an aggregate principal amount sufficient to satisfy the aggregate amount of Losses to which the Medtronic Indemnified Parties reasonably estimate (and provide the Sellers prior notice of) they may be entitled to recover from the Sellers in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present all such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerClaims.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(cThis Debenture is the debenture referred to in an irrevocable letter of credit issued by Wachovia Bank, National Association (the "Bank") in favor of the Holder in an original amount of $2,400,000, a copy of which is annexed hereto as Annex A (the "Letter of Credit"), insofar as it relates that will be secured by the proceeds from the sale of the Debentures to a Purchase Agreement Default in respect the Purchaser. The Company hereby acknowledges that the Holder and any subsequent Holder shall be entitled to the benefits of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming and covenants and agrees that it will not impair the Purchaser as beneficiary for an amount equal to Holder's rights under the LC Amount. Such Letter of Credit shall be delivered and (except to the Purchaser concurrently with the execution of this Agreement, and the Vendor extent provided in Section 2(b)) shall maintain the Letter of Credit in full force and effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever The Holder agrees that the rights and remedies face amount of the Purchaser Letter of Credit shall be reduced from time to time pursuant to the terms set forth below:
(i) subsequent to each Conversion Date, the face amount of the Letter of Credit shall be reduced on the date on which the Holder receives the Underlying Shares it is entitled to receive subsequent to such Conversion Date pursuant to Section 6(e), by an amount equal to the principal amount of Debentures converted on such Conversion Date, less any Premium accrued and its Additional Indemnities otherwise available payable up to such date; and
(ii) the face amount of the Letter of Credit shall be reduced by an amount equal to the Prepayment Price paid by the Company pursuant to the delivery of a Company Prepayment Notice or Holder Prepayment Notice, as set forth in Section 8, upon receipt by the Holder of such payment.
(c) The Holder shall, within five Trading Days of the occurrence of any of the events set forth in Section 2(b), provide the Bank with Exhibit C attached to the Letter of Credit indicating the occurrence of such event.
(d) Upon the failure of the Company to timely pay to the Holder any amount which is then due and payable to the Holder under this Article 9Debenture, whether pursuant to Section 7, Section 8 or any other applicable Section herein, the Holder shall be entitled to draw on the Letter of Credit to the extent of any such payment or payments so due to the Holder.
(e) Any amounts received by the Holder pursuant to a draw on the Letter of Credit shall be applied against all unsatisfied obligations of the Company under this Debenture.
Appears in 1 contract
Letter of Credit. Concurrently herewith and annually during the term of this Lease, Lessee shall deliver and deposit with Lessor an Irrevocable Letter of Credit (aa "Letter of Credit") The Vendor (in the amount set forth below) issued by Chemical Bank or such other bank as may be designated by Lessee, subject to Lessor's approval, not to be unreasonably withheld, each of which Letters of Credit shall secure its obligations under Section 9.2(c)not expire before September 1 of the following calendar year, insofar as it relates to a Purchase Agreement Default so that, during the term of this Lease, Lessor shall always be in respect possession and the beneficiary of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit, in full force and effect. The form of the Letter of Credit naming shall be in substantially the Purchaser same form as beneficiary for attached hereto as Exhibit "B" and incorporated herein by this reference. The Letter of Credit delivered concurrently herewith shall be in the amount of Five Hundred Twenty-Five Thousand Dollars ($525,000). Each year hereafter, each replacement Letter of Credit to be delivered as provided below shall be in an amount equal to the LC Amountamount of the Letter of Credit currently in effect (to expire on September 1 of the current year) multiplied by the CPI Fraction, as such CPI Fraction is set forth in the notice delivered by Lessor to Lessee pursuant to Paragraph 3.4(c) of the First Amendment. Such Provided, however, notwithstanding the foregoing the increase in the amount of any replacement Letter of Credit shall not be delivered to the Purchaser concurrently with the execution less than three percent (3%) of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way which it replaces nor more than five percent (5%) of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such amount of the Letter of Credit for payment if which it provides replaces. In the Vendor with event of a Notice material default under Section 13.1(b) by reason of Claim for Indemnified Losses pursuant Lessee's failure to Section 9.2(c)pay rent or other charges due hereunder, insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to Lessor may draw upon the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the currently issued Letter of Credit for the full LC Amount in effect for payment of such rent or any other charges which are payable under the entire LC Claim Period notwithstanding that the Purchaser may terms of this Lease. If Lessor so uses and draws upon such Letter of Credit, Lessor shall give written notice to Lessee of such draw and, Lessee shall have presented ten (10) business days after receipt of such notice to deliver and deposit with Lessor a replacement or amended Letter of Credit for payment earlier (in substantially the LC Claim Period. At any time after same form and substance as the Closing DateLetter of Credit drawn upon), restoring the Vendor may, in lieu amount of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein Credit to the insurer (who full original amount of such Letter of Credit upon which Lessor shall be satisfactory entitled to continue to draw as set forth above and as further set forth herein. On or before the Purchaser, acting reasonablylater of ten (10) agrees to unconditionally indemnify, for the remainder business days after delivery of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory notice pursuant to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information"Paragraph 3.4(c) that the Purchaser as of the Signing Date First Amendment or at any time thereafter has in respect of nonforty-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that five (45) days before the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.expiration
Appears in 1 contract
Samples: Lease (Clothestime Inc)
Letter of Credit. (a) The Vendor Subject to the terms and conditions hereof, and in reliance on the agreements set forth in clauses (c) and (e) hereof, from time to time, on any Business Day, the Issuer agrees to issue Letters of Credit for the account of the Borrower in such form as may be approved from time to time by the Issuer; provided that (i) the sum of the aggregate face amount of all Letters of Credit outstanding and the aggregate amount drawn under all Letters of Credit for which the Issuer has not been reimbursed at any time shall secure its obligations not exceed $3,000,000 and (ii) the sum of the Loans, the aggregate face amount of all Letters of Credit outstanding and the aggregate amount drawn under Section 9.2(c)all Letters of Credit for which the Issuer has not been reimbursed shall not, insofar at any time, exceed the Commitment minus, until such time as it relates the Existing Seller Note has been paid in full, $825,000.
(b) Each Letter of Credit (i) shall be opened pursuant to a Purchase Agreement Default written request from the Borrower on the Issuer's then current form of application for letter of credit which application shall be completed to the satisfaction of the Issuer and shall be delivered to the Issuer together with such other certificates, documents and other instruments and information as the Issuer may reasonably request, (ii) shall be denominated in respect U.S. dollars and (iii) shall expire on the Expiry Date. The Issuer shall not at any time be obligated to issue any Letter of Section 5.1(ii)Credit if such issuance would conflict with, or cause the Issuer or any Lender to exceed any limits imposed by an applicable Requirement of Laws.
(c) The Issuer agrees to allot and Section 9.2(ddoes allot, to itself and each Lender and, to induce the Issuer to issue the Letter of Credit, each Lender severally and irrevocably agrees to take and does hereby take for its own account and risk an undivided participating interest in the Issuer's Obligations equal to a percentage obtained by dividing such Lender's Commitment at the time by the aggregate amount of all Commitments at such time.
(d) The Borrower agrees (i) to reimburse the Issuer forthwith upon its demand for any payment made by providing the Purchaser with Issuer under a Letter of Credit naming and (ii) to pay interest on any unreimbursed portion of any such payment from the Purchaser date of such payment until reimbursement in full thereof at a rate per annum equal to (A) prior to the date which is one Business Day after the day on which reimbursement from the Borrower for such payment is due, the rate which would then be payable on any outstanding Alternate Base Rate Loans which are not overdue and (B) thereafter, the rate which would then be payable on any outstanding Alternate Base Rate Loans which are overdue. In addition to the foregoing, the Borrower shall reimburse the Issuer for any taxes, fees, charges or other costs or expenses incurred by the Issuer in connection with such payment. All payments hereunder shall be made to the Issuer at its address for notices specified herein in Dollars in immediately available funds.
(i) In the event that the Issuer makes a payment under a Letter of Credit and is not reimbursed in full therefor forthwith, upon demand of the Issuer referred to in Section 2.17(d), the Issuer shall promptly make demand for any such amount for which it has not received reimbursement upon each Lender. Each Lender unconditionally and irrevocably agrees that forthwith upon its receipt of any such demand for reimbursement, such Lender shall transfer to the Issuer, in immediately available funds, an amount equal to such Lender's pro rata share of the unreimbursed portion of such payment; provided that, if such demand is made prior to 12:00 noon, New York City time, on a Business Day, such Lender shall make such payment to the Issuer prior to the end of such Business Day and otherwise such Lender shall make such payment on the next succeeding Business Day. Whenever, at any time after the Issuer has made a payment under a Letter of Credit and has received from any Lender such Lender's pro rata share of the unreimbursed portion of such payment, the Issuer receives any reimbursement on account of such unreimbursed portion or any payment of interest on account thereof, the Issuer shall distribute to such Lender its pro rata share thereof; provided that in the event that the receipt by the Issuer of such reimbursement or such payment of interest (as beneficiary for the case may be) is required to be returned, such Lender will return to the Issuer any portion thereof previously distributed by the Issuer to such Lender.
(ii) Upon the occurrence and during the continuation of any Event of Default under Section 7.1(g) or, with notice from the Agent, upon the occurrence of any other Event of Default that is continuing (x) an amount equal to the LC Amountoutstanding Letters of Credit shall, without demand upon or notice to the Borrower, be deemed to have been paid or disbursed by the Issuer upon such Letters of Credit (notwithstanding that such amount may not in fact have been paid or disbursed); and (y) without further notice in the case of an Event of Default under Section 7.1(g) or, in the case of any other Event of Default that has occurred and is continuing, upon notice by the Agent to the Borrower of its Obligations hereunder, the Borrower shall be immediately obligated to reimburse the Issuer for the amount deemed to have been paid or disbursed by the Issuer. Such Any amount so payable by the Borrower shall be deposited by the Borrower in cash with the Agent and held as collateral security for the Obligations in connection with any Letter of Credit issued by the Issuer. The Borrower hereby grants to the Agent, for the benefit of the Issuer and the Lenders, a security interest in such cash collateral to secure all Obligations of the Borrower under this Agreement and the other Loan Documents. Amounts held in such cash collateral account shall be delivered applied by the Agent to the Purchaser concurrently with the execution payments of this Agreementdrafts drawn under any Letter of Credit, and the Vendor unused portion thereof after all Letters of Credit shall maintain have expired or been fully drawn upon, if any, shall be applied to repay other Obligations. After all Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been fully satisfied and all other Obligations shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Borrower. The Borrower shall execute and deliver to the Agent, for the account of the Issuer, such further documents and instruments as the Agent may request to evidence the creation and perfection of the security interest in such cash collateral account.
(f) The Borrower shall pay to the Agent for the pro rata account of the Issuer and the Lenders in respect of each Letter of Credit a fee in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only an amount equal to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the Applicable Margin then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for Eurodollar Loans (calculated on the entire LC Claim Period notwithstanding that basis of the Purchaser may have presented actual number of days elapsed over a Letter of Credit for payment earlier in 360-day year) multiplied by the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu Stated Amount of the Letter of Credit, secure its obligations under Section 9.2(csuch fee to be payable (i) on the date of issuance of such Letter of Credit (for the period from the date of issuance to the earlier of the Expiry Date of such Letter of Credit and the immediately succeeding Interest Payment Date), (ii) thereafter, quarterly in arrears on each Interest Payment Date for each quarter prior to such Expiry Date.
(g) The Borrower agrees to pay to the Issuer, for its own account, for services rendered by providing environmental insurance wherein the insurer Issuer, a fee equal to 0.25% on the Stated Amount each Letter of Credit, payable on the date such Letter of Credit is issued. The Borrower shall also pay or reimburse the Issuer for such normal and customary costs and expenses as are incurred or charged by the Issuer on issuing, effecting payment under, amending or otherwise administering any Letter of Credit.
(who h) The Reimbursement Obligations of the Borrower with respect to the Letter of Credit related thereto shall be satisfactory to unconditional and irrevocable and shall be paid strictly in accordance with the Purchaserterms of this Agreement under all circumstances, acting reasonably) agrees to unconditionally indemnifyincluding, for the remainder of the LC Claim Period, PECwithout limitation, the Purchaser and following: (i) the Purchaser's Affiliates for existence of any Nonclaim, set-PNG Related Environmental Liabilities on terms satisfactory to off, defense or other right which the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or Borrower may have at any time thereafter has in respect of non-Canadian petroleum and natural gas explorationagainst any beneficiary, development and production operations carried out by any one or more of PEC or any transferee, of its predecessors such Letter of Credit (or subsidiaries any Persons for whom any such beneficiary or any such transferee may be acting), the Agent, the Issuer, any Lender or any other Person, whether in connection with this Agreement or the transactions contemplated herein, or any unrelated transaction; (ii) any statement or any other document presented under such Letter of predecessorsCredit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iii) payment by the Issuer under such Letter of Credit against presentation of a draft or certificate which does not comply with the terms of such Letter of Credit or any other circumstances or happening whatsoever, whether or not similar to any of the foregoing (provided, howeveras to each of the foregoing, that such payment by the Vendor shall be solely liable for all premiums and related costs associated with Issuer or such insurance. The Purchaser shall grant reasonable access to circumstance or happening does not constitute gross negligence or willful misconduct of the non-PNG information to any such insurerIssuer).
(bi) To the extent that any provisions of any application for the opening of a Letter of Credit is inconsistent with the provisions of this Section 9.8(a) shall not impair2.17, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available provisions in this Article 9Section shall apply.
Appears in 1 contract
Letter of Credit. In satisfaction of the Security Deposit obligation contained in Section 28.1 above, Tenant shall deliver to Landlord, and shall maintain in effect at all times during the Initial Term following delivery thereof, a clean, unconditional and irrevocable letter of credit, in substantially the form annexed hereto as Exhibit E (athe “Letter of Credit”) The Vendor in the amount of the Security Deposit described in Article 1 hereof issued by Imperial Bank or another banking corporation (“Bank”) reasonably satisfactory to Landlord. Such letter of credit shall secure its obligations under Section 9.2(c), insofar as have an expiration date no earlier than the first anniversary of the date of issuance thereof and it relates shall be automatically renewed from year-to-year unless terminated by the Bank by notice to a Purchase Agreement Landlord given not less than forty-five (45) days prior to the then expiration date therefor. It is agreed that in the event there exists an Event of Default in respect of Section 5.1(iiany of the terms, covenants or provisions of this Lease, including, but not limited to, the payment of Rent, or if any letter of credit is terminated by the Bank and is not replaced within thirty (30) days prior to its termination or expiration that (A) Landlord shall have the right to require the Bank to make payment to Landlord of so much of the entire proceeds of the letter of credit as shall be reasonably necessary to cure the Event of Default (or the entire proceeds if notice of termination is given as aforesaid and the letter of credit is not replaced as aforesaid), and Section 9.2(d(B) Landlord may apply said sum so paid to it by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal Bank to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals extent required for the entire LC Claim Period, from time payment of Rent or any other sum as to time prior which an Event of Default by Tenant exists or for any sum which Landlord may expend or may be required to its expiry date. The Purchaser will be entitled to present such Letter expend by reason of Credit for payment if it provides the Vendor with a Notice an Event of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default by Tenant in respect of any of the terms, covenants and conditions of this Lease, including, but not limited to, any damages or deficiency in the reletting of the Premises, whether such damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord, without thereby waiving any other rights or remedies of Landlord with respect to such Event of Default. If Landlord applies any part of the proceeds of a letter of credit, Tenant, upon demand, shall deposit with Landlord promptly the amount so applied or retained (or increase the amount of the letter of credit) so that the Landlord shall have the full deposit on hand at all times during the Term. If, subsequent to a letter of credit being drawn upon, a new letter of credit meeting all the requirements set forth in this Section 5.1(ii)28.2 is delivered to Landlord, any proceeds of the former letter of credit then held by Landlord shall be promptly returned to Tenant. If Tenant shall fully and faithfully comply with all of the terms, covenants and provisions of this Lease, any letter of credit, or Section 9.2(dany remaining portion of any sum collected by Landlord hereunder from the Bank, together with any other portion or sum held by Landlord as security, shall be returned to Tenant within thirty (30) but only days after the last day of the Initial Term of this Lease. In the event of an assignment by Landlord of its interest under this Lease, Landlord shall have the right to transfer the security to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor assignee, and Tenant agrees to look to the Purchaser at least 30 days prior new Landlord solely for the return of said security and it is agreed that the provisions hereof shall apply to the expiry every transfer or assignment made of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented security to a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurernew Landlord.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Sublease (Fluidigm Corp)
Letter of Credit. (a) The Vendor shall secure its obligations under On or prior to the issuance, sale and delivery of the Bonds to the purchaser or purchasers thereof pursuant to Section 9.2(c)2.6 of the Indenture, insofar as it relates the Company hereby covenants and agrees to a Purchase Agreement Default in respect of Section 5.1(ii)obtain and deliver to the Trustee the initial, and Section 9.2(d) by providing the Purchaser with a irrevocable, transferable Letter of Credit naming to be issued by the Purchaser Bank in favor of the Trustee for the benefit of the owners from time to time of the Bonds, in substantially the same form as beneficiary Exhibit A attached to the Letter of Credit Agreement. The initial Letter of Credit shall be dated the date of issuance and delivery of the Bonds; shall expire on December 15, 2001, unless otherwise extended in accordance with the terms and provisions of subsection (b) below and the Letter of Credit Agreement; shall be in the amount of (i) the aggregate principal amount of the Bonds (A) to enable the Trustee to pay the principal of the Bonds at maturity, upon redemption prior to maturity or acceleration, and (B) to enable the Trustee to pay the portion of the purchase price of Bonds tendered or deemed to be tendered to the Trustee for purchase, equal to the aggregate principal amount of such Bonds, plus (ii) an amount equal to the LC Amountinterest to accrue on the Bonds for thirty-five (35) days at a maximum rate of twelve percent (12%) per annum (A) to enable the Trustee to pay interest accrued on the Bonds on the dates and in the manner set forth in the Indenture, and (B) to enable the Trustee to pay the portion of the purchase price of Bonds tendered or deemed to be tendered to the Trustee for purchase, equal to the accrued interest on such Bonds.
(b) Except as hereinafter provided, at any time prior to the fifteenth Business Day prior to the interest payment date on the Bonds immediately preceding the Stated Termination Date of the Letter of Credit, the Company may, at its option but is not required to, provide for the extension of the term of the Letter of Credit or deliver to the Trustee a substitute Letter of Credit as hereinafter provided. Such If the Company chooses to extend the term of the Letter of Credit, then such extension shall be to the fifteenth day of any calendar month at least one (1) year after the Stated Termination Date of the existing Letter of Credit, and (unless the Letter of Credit by its terms provides for an extension of its term automatically unless the Trustee is notified to the contrary) the Company shall furnish proof of such extension, in the form of an amendment to the Letter of Credit evidencing such extension, to the Trustee no later than the fifteenth Business Day prior to the interest payment date on the Bonds immediately preceding the Stated Termination Date of the Letter of Credit. In the event that the Letter of Credit by its terms provides for an extension of its term automatically unless the Trustee is notified to the contrary, such extensions shall be consistent with the terms and provisions set forth above, but it shall not be necessary to furnish such proof or amendment. If the Company chooses to provide a substitute Letter of Credit, such substitute Letter of Credit shall be an irrevocable letter of credit in substantially the same form and tenor as the initial Letter of Credit, in an amount equal to the outstanding principal amount of the Bonds plus an amount equal to the maximum interest to accrue on the Bonds then Outstanding for thirty-five (35) days at a maximum rate of twelve percent (12%) per annum, with administrative provisions reasonably satisfactory to the Trustee, but provided to expire on the fifteenth day of any calendar month at least one (1) year after the Stated Termination Date of the existing Letter of Credit, such substitute Letter of Credit to be issued by a commercial bank and delivered to the Purchaser concurrently with Trustee on or before the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days fifteenth Business Day prior to the expiry interest payment date on the Bonds immediately preceding the Stated Termination Date of the then outstanding Letter of Credit; provided, thatthat simultaneously with the delivery of any such substitute Letter of Credit to the Trustee, the Vendor Company shall maintain have provided the Trustee with written evidence from the Bank which issued the existing Letter of Credit that the Company shall have paid all of its obligations under the related Letter of Credit Agreement to such Bank (other than any obligations with respect to reimbursement for drawings under the Letter of Credit to purchase Bonds tendered or deemed to be tendered to the Trustee for purchase pursuant to Section 4.1 or Section 4.2 of the full LC Amount in effect for Indenture, which obligations are not yet due and owing under the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in Agreement) and shall have paid all other amounts due and owing under the LC Claim PeriodLetter of Credit Agreement pursuant to which the existing Letter of Credit was issued (except as aforesaid). At any time after Simultaneously with the Closing Datedelivery of such substitute Letter of Credit to the Trustee, the Vendor mayCompany shall also provide the Trustee with an opinion of Bond Counsel that such substitute Letter of Credit is authorized under this Agreement, in lieu complies with the terms hereof, and will not have an adverse effect on the exclusion of the interest on the Series 1996-A Bonds from gross income of the owners thereof for Federal income tax purposes. If the Company shall fail to furnish to the Trustee such written evidence from such Bank and such opinion of Bond Counsel on or before the specified date, the Trustee shall be deemed not to have received the substitute Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein and the insurer (who Bonds shall be satisfactory subject to the Purchaser, acting reasonably) agrees mandatory tender for purchase pursuant to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.4.2
Appears in 1 contract
Samples: Loan Agreement (Exolon Esk Co)
Letter of Credit. (a) Within ten (10) business days after the execution of this Lease, Tenant shall deposit with Landlord an irrevocable letter of credit (the "Letter of Credit") in the amount of Eight Hundred Thousand Dollars ($800,000.00) as part of the Security Deposit under this Lease. The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming provided for under this Section shall be an unconditional "clean" Letter of Credit and require no documents, and shall be in the Purchaser form attached as beneficiary for an amount equal Exhibit D and from a banking institution satisfactory to Landlord; provided however, Landlord pre-approves Comerica Bank as the LC AmountIssuer initially. Such It shall also be in compliance with all applicable laws and regulations, including, without limitation, applicable regulations of the Comptroller of the Currency. The Letter of Credit shall have an absolute expiration date of not earlier than forty-five (45) days after the Expiration Date of the initial Term of this Lease and prior thereto shall be delivered extended automatically on each anniversary of issuance unless the Issuer provides Landlord with not less than forty-five (45) days prior written notice of non-renewal, in which case the same shall be replaced by Tenant with another Letter of Credit which complies with the foregoing requirements at least thirty (30) days prior to its expiration. It is agreed that in the event (i) Tenant defaults in the performance or observance of any of the terms, provisions, covenants and conditions of this Lease, including the payment of Rent or any other sum due from Tenant with respect to the Purchaser concurrently with the execution of this AgreementLease, and the Vendor shall maintain or (ii) the Letter of Credit is not extended or replaced by Tenant in effecta manner which complies with the foregoing provisions of this Section, including by way of renewals for Landlord shall have the entire LC Claim Periodright but shall not be required to, from time to time prior without prejudice to its expiry date. The Purchaser will be entitled any other remedy Landlord may have on account thereof, to present such the Letter of Credit for payment if it provides and to retain the Vendor with a Notice proceeds as security in the event of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii)an occurrence under clause (i) above, or Section 9.2(din the event of an occurrence under clause (i) but only above, to use, apply or retain the whole or any part of the proceeds to the extent of such Indemnified Losses Landlord could use, apply or if retain any other funds deposited with Landlord as a renewal Letter of Credit is not Security Deposit hereunder, and any amounts so used, applied or retained shall be replenished by Tenant as provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain in Section 5.03 below. If Landlord presents the Letter of Credit for payment, no interest shall be payable to Tenant on the full LC Amount in effect for proceeds. Tenant shall not assign or encumber or attempt to assign or encumber the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in deposited (or the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu proceeds thereof) as part of the Letter of CreditSecurity Deposit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.neither Landlord
Appears in 1 contract
Samples: Office Lease (Calico Commerce Inc/)
Letter of Credit. (a) The Vendor shall secure Subject to and upon the terms and conditions herein set forth, the Borrower may request that the Issuing Lender issue, at any time and from time to time on and after the Closing Date and prior to the Termination Date, for the account of the Borrower and for the benefit of any holder (or any trustee, agent or other similar representative for any such holders) of L/C Supportable Obligations of the Borrower, an irrevocable standby letter of credit, in a form customarily used by the Issuing Lender or in such other form as has been approved by the Issuing Lender in its obligations under Section 9.2(c)discretion (each such standby letter of credit, insofar as a "Letter of Credit") in support of such L/C Supportable Obligations.
(b) Subject to the terms and conditions contained herein, the Issuing Lender hereby agrees that it relates will, at any time and from time to a Purchase Agreement Default in respect time on or after the Closing Date and prior to the Termination Date, following its receipt of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a respective Letter of Credit naming Request, issue for the Purchaser account of the Borrower one or more Letters of Credit in support of such L/C Supportable Obligations of the Borrower as beneficiary for an amount equal are permitted to remain outstanding without giving rise to a Default or Event of Default hereunder, provided that the Issuing Lender shall be under no obligation to issue any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or arbitrator shall purport by its terms to enjoin or restrain the Issuing Lender from issuing such Letter of Credit or any requirement of law applicable to the LC Amount. Such Issuing Lender or any request or directive (whether or not having the force of law) from any governmental authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Lender with respect to such Letter of Credit any restriction or reserve or capital requirement (for which the Issuing Lender is not otherwise compensated) not in effect on the date hereof, or any unreimbursed loss, cost or expense which was not applicable, or known to the Issuing Lender as of the date hereof and which the Issuing Lender in good faitx xxxxx material to it; or
(ii) the Issuing Lender shall have received notice from any Lender prior to the issuance of such Letter of Credit of the type described in the second sentence of Section 2.19(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be delivered issued the Stated Amount of which, when added to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effectOutstandings (exclusive of Unpaid Drawings which are repaid on the date of, including by way of renewals for the entire LC Claim Period, from time to time and prior to the issuance of, the respective Letter of Credit) and the aggregate principal amount of all Revolving Credit Loans then outstanding, would exceed the Revolving Credit Commitments at such time, (ii) each Letter of Credit shall be denominated in Dollars, (iii) each Letter of Credit shall by its expiry date. The Purchaser will be entitled to present terms terminate on or before the earlier of (A) the date which occurs 12 months after the date of the issuance thereof (although any such Letter of Credit may be automatically extendable for payment if it provides successive periods of up to 12 months, but not beyond the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only tenth Business Day prior to the extent Termination Date, on terms acceptable to the Issuing Lender) and (B) the tenth Business Day prior to the Termination Date, (iv) the Stated Amount of such Indemnified Losses or if a renewal each Letter of Credit upon issuance shall be not less than $100,000 or such lesser amount as is not provided by the Vendor acceptable to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerIssuing Lender.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. (a) The Vendor shall secure its obligations Any indemnification of a Purchaser Indemnified Party hereunder may, at the option of Purchaser, be satisfied from the issuing bank under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for (the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c“Issuing Bank”), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, however, that, in order to obtain payment from the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of Issuing Bank under the Letter of Credit, secure its obligations Purchaser must first present to the Issuing Bank one of the following: (a) a signed, written notice attaching a copy of a final order or judgment duly issued by a court of competent jurisdiction providing that Purchaser is entitled to such payment pursuant to this Agreement; (b) a signed, written notice attaching a copy of a then-pending claim for indemnification asserted by Purchaser against Seller in accordance with Section 7.04 that has not been satisfied by Seller, withdrawn by Purchaser or otherwise fully resolved by the parties within 30 days following the day on which Purchaser first submitted the indemnification claim to Seller under Section 9.2(c)7.04, by providing environmental insurance wherein which notice shall state the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder amount of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessorssuch claim; provided, however, that the Vendor Letter of Credit shall provide that, within five Business Days of the Issuing Bank’s receipt of any such notice pursuant to this clause (b), the Issuing Bank shall make payment in the amount of any such claim (but in no event in excess of the then-remaining amount available to be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access drawn under the Letter of Credit) directly to the nonescrow agent pursuant to an escrow agreement to be entered into in substantially the form attached hereto as Exhibit H (the “Escrow Agreement”); or (c) within the 30-PNG information day period prior to the expiration of the Letter of Credit, a signed, written notice attaching a copy of any such insurer.
then-pending claim(s) for indemnification asserted by Purchaser against Seller in accordance with Section 7.04 that have not previously been satisfied by Seller, withdrawn by Purchaser or otherwise fully resolved by the parties (excluding any indemnification claims previously presented to the Issuing Bank pursuant to clause (b) Section 9.8(aabove), which notice shall state the amount of such claim(s); provided, however, that the Letter of Credit shall provide that if the Issuing Bank receives one or more notices contemplated by this clause (c) shall not impair, effect or limit in any way whatsoever within the rights and remedies 30-day period prior to the expiration of the Letter of Credit, immediately prior to the expiration of the Letter of Credit the Issuing Bank shall make payment in the amount of any such then-pending claim(s) (but in no event in excess of the then-remaining amount available to be drawn under the Letter of Credit) directly to the escrow agent under the Escrow Agreement. Such escrow agent shall hold such funds in escrow in accordance with the terms of the Escrow Agreement pending the final determination of all such pending indemnification claims. In addition, the Letter of Credit shall provide that, until the expiration date of the Letter of Credit, the Issuing Bank shall make payment to any Purchaser and its Additional Indemnities otherwise Indemnified Party presenting to the Issuing Bank the documents contemplated by clause (a) above within five Business Days after such presentation by wire transfer of immediately available funds to an account designated by such Purchaser Indemnified Party to the Issuing Bank (but in this Article 9no event in excess of the then-remaining amount available to be drawn under the Letter of Credit).
Appears in 1 contract
Letter of Credit. 13.1 For so long as the Notes remain outstanding (a) The Vendor shall secure its obligations under Section 9.2(cand, as set forth in Paragraph 13.3 hereinafter, for such additional period as is required to obtain a final determination as to the validity of any asserted rights of offset of Purchaser against any portion of the Notes), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with shall maintain a Letter of Credit naming in effect (including the Purchaser as beneficiary for timely renewal of the Letter of Credit (the "LETTER OF CREDIT") upon its expiration in accordance with its terms) in an amount at all times at least equal to the LC Amount. Such then outstanding aggregate principal balance of the Notes (or, to the extent not fully drawn down as a result of any asserted right of offset, the Letter of Credit shall be delivered maintained in the amount of any such asserted right of offset, if applicable, until such issue has been finally resolved).
13.2 On the Closing, Purchaser shall deliver the hereinafter described Letter of Credit to Xxxxxxx Xxxxxxx who will act as Sellers' Agent (the "SELLERS' AGENT") pursuant to the Purchaser concurrently with terms of the execution Authorization of this AgreementSellers' Agent annexed hereto as EXHIBIT "N".
13.3 The Letter of Credit shall (a) be issued by a bank, savings and loan association or other financial institution, (b) name the Sellers' Agent as beneficiary, (c) be in an amount not less than the outstanding aggregate principal balance outstanding under the Notes from time to time, (d) be irrevocable through its expiration date, and (e) be conditioned as to payment only upon its presentment together with an affidavit ("SELLERS' AFFIDAVIT") of the Vendor shall maintain Sellers' Agent certifying (i) that Purchaser has either (aa) breached its obligations under Paragraph 13.4, or (bb) that an Event of Default has occurred under the Notes, or any of them, and has not been cured after notice and within the applicable grace period provided in the Notes, (ii) that Sellers' Agent has sent a notice of intent to request payment of the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG informationADDITIONAL NOTICE") that and Purchaser has not cured the Purchaser as Event of Default within ten (10) days after receipt of the Signing Date or at Additional Notice, (iii) Purchaser has not asserted any time thereafter right of offset relating to any amount due pursuant to the Notes, or, if such right of offset has in respect been asserted, a statement of non-Canadian petroleum the amount so asserted and natural gas exploration, development and production operations carried out (iv) the amount that Sellers are entitled to receive pursuant to the terms of the Notes (as adjusted for any asserted right of offset by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurancePurchaser). The Purchaser term "LETTER OF CREDIT" shall grant reasonable access refer to the non-PNG information to letter of credit delivered by Purchaser on the Closing Date and any such insurerextension, renewal and substitution therefor.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. (a) The Vendor shall secure its obligations If, under Section 9.2(c)the Lease, insofar as it relates Lessee is required or elects to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser provide Lessor with a Letter of Credit, the provisions of this Section shall apply. Any Letter of Credit naming provided by Lessee to Lessor will be issued and payable by a Pre-Approved Bank or another bank acceptable to Lessor in its sole and absolute discretion and in substantially the Purchaser form of Schedule 13, or in another form and substance acceptable to Lessor in its sole and absolute discretion, and, if not issued by a Pre-Approved Bank or by the New York branch of a major international bank acceptable to Lessor in its sole and absolute discretion from time to time, will be confirmed by and payable at the New York branch of a major international bank acceptable to Lessor in its sole and absolute discretion from time to time, and will be issued as beneficiary security for an amount equal all payment obligations of Lessee or any its Affiliates under the Lease and each Other Agreement (including any and all Losses suffered or incurred by Lessor or any of its Affiliates in respect of which Lessee or any if its Affiliates is obligated under the Lease or each Other Agreement), which shall remain in full force and effect until the Required LC Expiry Date and may be drawn down by Lessor upon demand at any time or times prior to the Required LC Amount. Such Expiry Date following (i) the occurrence of an Event of Default or a Default under clause (g) of Schedule 9, or (ii) the receipt by Lessor of notice of non-renewal of the Letter of Credit under Section 5.14(b) below.
(b) The Letter of Credit may have a validity period or periods ending prior to the Required LC Expiry Date, provided that (i) the Letter of Credit shall be delivered to renewed automatically, without further act or deed by any party, until such time as Lessor receives notice of non-renewal of the Purchaser concurrently with the execution Letter Credit, (ii) notice of this Agreement, and the Vendor shall maintain non-renewal of the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time shall be provided to time Lessor no less than 30 Business Days prior to its then scheduled expiry date. The Purchaser will , (iii) Lessor shall be entitled to present such Letter draw the full amount of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier immediately in the LC Claim Period. At event that Lessor receives any time after the Closing Date, the Vendor may, in lieu notice of non-renewal of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer ; and (who iv) a Letter of Credit shall be satisfactory remain in force at all times up to the Purchaser, acting reasonablyRequired LC Expiry Date.
(c) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or If at any time thereafter has during the Term, the current issuing or confirming bank for the Letter of Credit ceases to meet the requirements set forth in respect the definition of nonPre-Canadian petroleum Approved Bank, Lessee shall within five (5) Business Days after the date of notice from Lessor of such decrease in credit rating, cause the Letter of Credit to be replaced by a Letter of Credit issued by another bank that meets the definition of a Pre-Approved Bank and natural gas exploration(if, development requested by Lessor in its sole and production operations carried out absolute discretion) that such replacement Letter of Credit is confirmed by any one or more another bank that meets the requirement of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the nona Pre-PNG information to any such insurerApproved Bank.
(bd) Section 9.8(a) shall not impairIf Lessor makes a drawing under the Letter of Credit, effect or limit Lessee shall, following a demand in any way whatsoever writing by Lessor, immediately cause the rights and remedies maximum amount available for drawing under the Letter of Credit to be restored to the Purchaser and its Additional Indemnities otherwise available in this Article 9level at which it stood immediately prior to such drawing.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Letter of Credit. (ai) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), On or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time date ten (10) Business Days after the Closing Date, the Vendor mayCompany shall obtain irrevocable letters of credit (each a "Letter of Credit", together the Letters of Credit) issued in favor of each of the Buyers, in lieu the amount of such Buyers pro rata portion of $1,500,000 (the "Buyer LC Amount", and collectively, the "Letter of Credit Amount") by a bank acceptable to the Buyers (the "Letter of Credit Bank") and in form and substance acceptable to the Buyers. The Letters of Credit, including any renewals, extensions or replacements referred to below, shall expire not earlier than the earlier of (x) the five (5) year anniversary of the Closing Date, (y) the date the Put Option Agreement has terminated in accordance with its terms and (z) been exercised in full by the Buyers (the "LC Redemption Expiration Date") unless the Letters of Credit shall have been reduced to zero in accordance with the terms contained in this Section 4(p) prior to such date. On the Date the Letters of Credit are obtained by the Company, each Buyer shall deliver to the Company the amount set forth opposite such Buyer's name in column (8) of the Schedule of Buyers by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company.
(ii) Upon a Buyer exercising its rights under the Put Option Agreement, such Buyer may draw under its Letter of Credit, including any renewals, extensions or replacements referred to below, such portion of the Letter of Credit not to exceed, in the aggregate, the Cash Payment (as defined in the Put Option Agreement) amount of the Put Price (as defined in the Put Option Agreement) due to the Buyer from the Company upon such exercise. The Company shall obtain such renewals, extensions or replacements of each Letter of Credit as necessary to ensure that the Letter of Credit shall not expire prior to the LC Redemption Expiration Date (unless such Letter of Credit shall have been reduced to zero in accordance with the terms contained in this Section 4(p) prior to such date). If, at any time, the Company cannot obtain a renewal, extension or replacement of the Letters of Credit such that the Letters of Credit will expire prior to the LC Redemption Expiration Date (a "Withdrawal Event"), the Company and the Letter of Credit Bank shall each give the Buyers written notice of the occurrence of a Withdrawal Event at least forty-five (45) days prior to the then current expiration date of the Letters of Credit. Following a Withdrawal Event, secure each Buyer shall be entitled to draw down its Buyer LC Amount in its entirety and hold such amount as collateral security for the obligations under Section 9.2(cthe Put Option Agreement.
(iii) At such time that the aggregate Put Price payable by the Company under the Put Option Agreement is less than $1,500,000 (the "Reduction Threshold Event"), by providing environmental insurance wherein the insurer (who shall be satisfactory Company may deliver a notice to the PurchaserLC Agent (the "LC Reduction Notice"), acting reasonablycertifying as to the occurrence of the Reduction Threshold Event. Within seven (7) agrees to unconditionally indemnify, for Business Days after the remainder LC Agent's receipt of the LC Claim PeriodReduction Notice, PECunless the LC Agent reasonably objects to such LC Reduction Notice, the Purchaser LC Agent shall issue a written instruction to the Letter of Credit Bank to request the reduction of the Letter of Credit Amount as set forth in the LC Reduction Notice, such reduction amount to equal to the difference between $1,500,000 and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory aggregate Put Price payable by the Company under the Put Option Agreement at the time of such Reduction Threshold Event and applied pro rata to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as Letters of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerCredit.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Securities Purchase Agreement (Msgi Security Solutions, Inc)
Letter of Credit. (a) The Vendor shall secure its obligations If, under Section 9.2(c)the Lease, insofar as it relates Lessee is required or elects to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser provide Lessor with a Letter of Credit, the provisions of this Section shall apply. Any Letter of Credit naming provided by Lessee to Lessor will be issued and payable by a Pre-Approved Bank or another bank acceptable to Lessor in its sole and absolute discretion and in substantially the Purchaser form of Schedule 13, or in another form and substance acceptable to Lessor in its sole and absolute discretion, and, if not issued by a Pre-Approved Bank or by the New York branch of a major international bank acceptable to Lessor in its sole and absolute discretion from time to time, will be confirmed by and payable at the New York branch of a major international bank acceptable to Lessor in its sole and absolute discretion from time to time, and will be issued as beneficiary security for an amount equal all payment obligations of Lessee or any its Affiliates under the Lease and each Other Agreement (including any and all Losses suffered or incurred by Lessor or any of its Affiliates in respect of which Lessee or any if its Affiliates is obligated under the Lease or each Other Agreement), which shall remain in full force and effect until the Required LC Expiry Date and may be drawn down by Lessor upon demand at any time or times prior to the Required LC Amount. Such Expiry Date following (i) the occurrence of an Event of Default or a Default under clause (g) of Schedule 9, or (ii) the receipt by Lessor of notice of non-renewal of the Letter of Credit under Section 5.14(b) below.
(b) The Letter of Credit may have a validity period or periods ending prior to the Required LC Expiry Date, provided that (i) the Letter of Credit shall be delivered to renewed automatically, without further act or deed by any party, until such time as Lessor receives notice of non-renewal of the Purchaser concurrently with the execution Letter Credit, (ii) notice of this Agreement, and the Vendor shall maintain non-renewal of the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time shall be provided to time Lessor no less than 30 Business Days prior to its then scheduled expiry date. The Purchaser will , (iii) Lessor shall be entitled to present such Letter draw the full amount of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier immediately in the LC Claim Period. At event that Lessor receives any time after the Closing Date, the Vendor may, in lieu notice of non-renewal of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer ; and (who iv) a Letter of Credit shall be satisfactory remain in force at all times up to the Purchaser, acting reasonablyRequired LC Expiry Date.
(c) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or If at any time thereafter has during the Term, the current issuing or confirming bank for the Letter of Credit ceases to meet the requirements set forth in respect the definition of nonPre-Canadian petroleum Approved Bank, Lessee shall within five (5) Business Days after the date of notice from Lessor of such decrease in credit rating, cause the Letter of Credit to be replaced by a Letter of Credit issued by another bank that meets the definition of a Pre-Approved Bank and natural gas exploration, development (if requested by Lessor in its sole and production operations carried out absolute discretion) that such replacement Letter of Credit is confirmed by any one or more another bank that meets the requirement of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the nona Pre-PNG information to any such insurerApproved Bank.
(bd) Section 9.8(a) shall not impairIf Lessor makes a drawing under the Letter of Credit, effect or limit Lessee shall, following a demand in any way whatsoever writing by Lessor, immediately cause the rights and remedies maximum amount available for drawing under the Letter of Credit to be restored to the Purchaser and its Additional Indemnities otherwise available in this Article 9level at which it stood immediately prior to such drawing.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Letter of Credit. (ai) The Vendor shall secure its obligations under Section 9.2(c)Subject to the terms of this subsection (i) and subsection (ii) below, insofar 22 contemporaneously with the Initial Funding and as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing security for the Purchaser with a Letter of Credit Obligations, the First Choice Parties shall obtain and deliver to MPT an irrevocable letter of credit at a financial institution reasonably acceptable to MPT naming the Purchaser MPT as beneficiary thereunder (the “Letter of Credit”), which Letter of Credit shall be upon such other terms, conditions and provisions acceptable to MPT (including, without limitation, an “evergreen” provision requiring no less than sixty (60) days’ prior written notice to MPT of any failure or refusal to renew such Letter of Credit). Subject to the proviso below and the increases provided for in this subsection (i), the Letter of Credit shall be in an amount equal to the LC Amount. Such Letter maximum amount permitted without violating the Guaranty Limitation, based upon the amount of Credit the Total Development Costs incurred through the applicable Funding date, which in no event shall be delivered exceed an amount equal to Fifty Percent (50%) of one (1) year’s Base Rent (as defined under the Master Lease) relating to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessorsFacility; provided, however, that delivery of the Vendor Letter of Credit shall not be required until the Adeptus Parties can deliver a Letter of Credit in a minimum amount of Seventy-Five Thousand Dollars ($75,000) without violating the Guaranty Limitation. Following initial delivery of the Letter of Credit to MPT, on each subsequent Funding date the Adeptus Parties shall deliver to MPT a replacement letter of credit, or an amendment to the Letter of Credit, reflecting an increase in the Letter of Credit amount calculated as provided herein above; provided, further, that the Adeptus Parties will not be required to replace the Letter of Credit or provide an amendment to increase the amount of the Letter of Credit pursuant to this sentence (A) more frequently than once every thirty (30) days, or (B) if the Letter of Credit amount would be increased by less than Twenty-Five Thousand Dollars ($25,000). The Letter of Credit, or any replacement letter of credit, shall provide that MPT shall be solely liable for all premiums and related costs associated entitled to draw upon such Letter of Credit upon the occurrence of an Event of Default. In the event MPT receives a notice of termination or nonrenewal of the Letter of Credit or any replacement letter of credit, Adeptus Parties shall provide a replacement letter of credit no later than thirty (30) days prior to the expiration or termination of such Letter of Credit or replacement letter of credit, the terms of which shall be consistent with such insurancethe requirements of this Section 3.11(k). The Purchaser Adeptus Parties shall grant reasonable access maintain a letter of credit conforming to the non-PNG information to any such insurerrequirements of this Section 3.11 (k) until the date of Completion or as otherwise required under Master Lease.
(bii) Section 9.8(aThe Adeptus Parties may, at their option, satisfy the Letter of Credit requirements under this Agreement by providing one (1) shall not impairletter of credit satisfying the letter of credit requirements of this Agreement, effect or limit as well as the letter of credit requirements under the other Project Development Agreements (as defined in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9Master Lease) entered into by their Affiliates.
Appears in 1 contract
Samples: Master Funding and Development Agreement (Adeptus Health Inc.)
Letter of Credit. (a) The Vendor shall secure Concurrently with its execution hereof, and as a condition to the effectiveness of this Sublease, in lieu of a cash security deposit, as collateral for the full and faithful performance by Sublessee of all of its obligations under Section 9.2(c)the Sublease and to compensate Sublessor for all losses and damages Sublessor may suffer as a result of any default by Sublessee under this Sublease, insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), Sublessee shall post an irrevocable and Section 9.2(d) by providing the Purchaser with a unconditional negotiable standby Letter of Credit naming in the Purchaser as beneficiary for an face amount equal of $231,404.82 (the “Letter of Credit”), which shall be subject to and in accordance with the terms of the Rider 1 attached hereto. Sublessor may apply all or any part of such Letter of Credit to cure all or any part of any default by Sublessee, and Sublessee agrees, upon demand, to promptly replace such Letter of Credit with a substitute Letter of Credit in the full amount stated above. Sublessor’s application of all or any part of the Letter of Credit shall not constitute a waiver of any right or remedy hereunder or otherwise available at law or in equity. Notwithstanding anything in this Article 13 to the LC Amountcontrary, so long as (i) Sublessee is not in default hereunder, and (ii) there has been no material adverse change in Sublessee’s financial condition from the condition existing as of the date hereof (collectively, the “Reduction Conditions”), Sublessee shall be entitled to a reduction of the Letter of Credit as set forth hereunder. Such Subject to satisfaction of the Reduction Conditions, the Letter of Credit shall be delivered reduced by (i) $38,567.47 on the first (1st) day of the thirteenth (13th) month of the Sublease Term and (ii) $38,567.47 on the first (1st) day of the twenty-fifth (25th) month of the Sublease Term. Each actual accrued credit amount shall be applied to the Purchaser concurrently with the execution of Base Rent next coming due under this AgreementSublease, and the Vendor shall maintain following a draw against the Letter of Credit in effectsuch amount. Any and all increments of credit hereunder, including by way which shall in no event exceed the total amount of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment required and unapplied by Sublessor, may be referred to hereunder as a “Reduction Amount”. It is understood and agreed that, if it provides all of the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c)above referenced Reduction Amounts are applied as set forth above, insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by shall total $154,269.88, and there shall be no further reduction in the Vendor to the Purchaser at least 30 days prior to the expiry amount of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerSublease Term.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. Ryan's obligations with respect to amounts that may be paid to Tenant pursuant to this Agreement is secured by a $7,000,000 letter of credit issued by U.S. Bank National Association ("Lender"), a copy of which is attached hereto as EXHIBIT B. Tenant may (a) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect draw upon such letter of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, credit from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides pay any amounts payable by Xxxx under Agreement which are not paid by Xxxx within twenty (20) days after demand therefor, and/or (b) draw the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent entire amount of such Indemnified Losses or letter of credit if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 thirty (30) days prior to the expiry expiration date of the then outstanding Letter current letter of Credit; providedcredit either (i) Lender has not extended the current letter of credit for a period of at least one (1) year from the then current expiration date, that, or (ii) Lender or another issuer acceptable to Tenant in its sole discretion has not issued to Tenant a replacement letter of credit with an expiration date at least one (1) year from the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu expiration date of the Letter then current letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein credit and otherwise acceptable to Tenant. In the insurer (who shall be satisfactory event Tenant draws upon such letter of credit pursuant to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
clause (b) Section 9.8(aabove, Tenant shall reimburse to Xxxx any amounts not applied by Tenant to any payments due under this Agreement, such reimbursement to be made within ninety (90) days after the earlier to occur of (y) such date as Xxxx shall not impairfurnish to Tenant a substitute letter of credit from Lender or another issuer acceptable to Tenant in its sole discretion with an expiration date at least one (1) year from the date of issuance thereof and otherwise acceptable to Tenant, effect or limit in any way whatsoever (z) the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9Final Notice Date.
Appears in 1 contract
Letter of Credit. (ai) The Vendor On or prior to the Closing Date, the Company shall secure its obligations under Section 9.2(cobtain an irrevocable letter of credit (the “Letter of Credit”), insofar as it relates to a Purchase Agreement Default in respect the amount of Section 5.1(ii), and Section 9.2(d$10,000,000 issued in favor of Kings Road Investments Ltd. (the “LC Agent”) by providing a bank acceptable to such LC Agent (the Purchaser with a “Letter of Credit naming Bank”) and in form and substance acceptable to such LC Agent. The Letter of Credit, including any renewals, extensions or replacements referred to below, shall expire not earlier than 91 days after the Purchaser Maturity Date of the Notes (the “LC Expiration Date”). Upon the occurrence and during the continuance of an Event of Default under (and as beneficiary for an amount equal to defined in) any of the Notes, the LC AmountAgent shall be entitled to draw under the Letter of Credit, including any renewals, extensions or replacements referred to below, for the full Letter of Credit Amount (as defined in the Notes) then available thereunder, it being understood that the LC Agent shall act for the benefit of the Buyers on a pro rata basis based on the principal amount of the Notes held by each of the Buyers and hold such amount as collateral security for the obligations under the Notes for the benefit of the Buyers. Such The Company shall obtain such renewals, extensions or replacements of the Letter of Credit as necessary to ensure that the Letter of Credit shall be delivered not expire prior to the Purchaser concurrently LC Expiration Date (unless the Letter of Credit shall have been reduced to zero in accordance with the execution terms contained in this Section 4(q) prior to such date). If, at any time, the Company cannot obtain a renewal, extension or replacement of this Agreementthe Letter of Credit such that the Letter of Credit will expire prior to the LC Expiration Date (a “Withdrawal Event”), the Company and the Letter of Credit Bank shall each give the LC Agent written notice of the occurrence of a Withdrawal Event at least forty-five (45) days prior to the then current expiration date of the Letter of Credit. Following a Withdrawal Event, the LC Agent shall be entitled to draw down the Letter of Credit Amount in its entirety (whether or not an Event of Default shall have occurred or be continuing under any of the Notes) and hold such amount as collateral security for the obligations under the Notes for the benefit of the Buyers.
(ii) If more than $5 million of the Notes are converted, redeemed or amortized pursuant to the terms of the Notes, the Company shall promptly deliver a notice to the LC Agent (the “LC Reduction Notice”), certifying as to the occurrence of such event, the aggregate principal amount then outstanding under the Notes, and the Vendor amount by which the Letter of Credit Amount shall maintain be reduced, such reduction amount to equal one-half of the difference between $15 million and the aggregate principal amount of the Notes then outstanding. After delivery of the initial LC Reduction Notice, if the outstanding principal amount of the Notes has been reduced by $2 million or more from the time of the prior LC Reduction Notice, the Company may deliver a subsequent LC Reduction Notice to the LC Agent certifying as to the occurrence of such event, the aggregate principal amount then outstanding under the Notes, and the amount by which the Letter of Credit Amount shall be reduced, such reduction amount to equal the difference between (A) one-half of the difference between (i) $15 million and (ii) the aggregate principal amount of the Notes then outstanding and (B) the aggregate amount of any prior reductions of the Letter of Credit Amount. Within 10 days of the receipt of any such LC Reduction Notice, the LC Agent shall issue a written instruction to the Letter of Credit Bank to request the reduction of the Letter of Credit Amount to the Company as set forth in the LC Reduction Notice.
(iii) Notwithstanding the foregoing, if the LC Agent reasonably disagrees with the contents of a LC Reduction Notice or the Company disagrees with any action taken or omitted to be taken by the LC Agent, such party shall use the dispute resolution procedures contained in Section 25 of the Notes.
(iv) Kings Road Investments Ltd. is hereby appointed as the LC Agent for the Buyers hereunder, and each Buyer hereby authorizes the LC Agent (and its officers, directors, employees and agents) to take any and all such actions on behalf of the Buyers with respect to the Letter of Credit in effect, including by way accordance with the terms of renewals for the entire LC Claim Period, from time to time prior to its expiry datethis Agreement. The Purchaser will be entitled to present such Letter LC Agent shall not have, by reason hereof or any of Credit for payment if it provides the Vendor with other Transaction Documents, a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default fiduciary relationship in respect of any Buyer. To the extent that the LC Agent, in such capacity, receives any funds pursuant to the terms of this Section 5.1(ii4(q), or Section 9.2(d) but only if the LC Agent is to distribute any of such funds to any Buyer (including Kings Road Investments Ltd., in its capacity as a Buyer), it shall distribute such funds to all of the Buyers on a pro rata basis based on the principal amount of the Notes held by each of the Buyers. Neither the LC Agent nor any of its officers, directors, employees and agents shall have any liability to the extent Buyer for any action taken or omitted to be taken in connection hereof, and any Buyer agrees to defend, protect, indemnify and hold harmless the LC Agent and all of its officers, directors, employees and agents (collectively, the “Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Indemnified Losses Indemnitee, whether direct, indirect or if a renewal Letter of Credit is not provided consequential, arising from or in connection with the performance by the Vendor to the Purchaser at least 30 days prior to the expiry such Indemnitee of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its duties and obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerAgent pursuant hereto.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. The Letter-of-Credit referred to in the paragraph above, shall be issued by an Issuer acceptable to Lessor and on terms and conditions acceptable to Lessor, including, but not limited to, the following:
59.3.1 The Letter-of-Credit shall be guaranteed irrevocable;
59.3.2 The terms, conditions and Instructions of the Letter-of-Credit shall be reviewed in advance of Lease execution and approved by Lessor and shall not be subsequently changed except by written agreement executed by both Lessee and Lessor;
59.3.3 In the event that Issuer of the Letter-of-Credit issues the Letter-of-Credit on a yearly term basis, Lessee guarantees to maintain the Letter-of-Credit continuously effective, with the same terms and conditions, throughout the term of this Lease, including any extensions or option periods.
59.3.4 In addition Lessee shall maintain the effectiveness of the Letter-of-Credit for a period not to exceed forty-five (a45) The Vendor shall secure days after the later of (i) expiration of this Lease; (ii) earlier termination of this Lease; or (iii) the complete vacation of the Premises by Lessee ("45-Day Period") so that Lessor, during the 45-Day Period, may confirm that all of Lessee's obligations under this Lease have been fulfilled. In order to permit Lessor a reasonable period of time within which to obtain such confirmation, Lessee hereby waives the thirty (30)-day notice from Lessor otherwise required by Paragraph 13.1(c) of this Lease. If Lessor reasonably determines that Lessee has not fulfilled all of its obligations under Section 9.2(c)this Lease, insofar Lessor shall promptly notify Lessee in writing of the basis for its determination, and Lessee promptly shall remedy the stated problem. Lessor shall use the 45-Day Period to obtain such information, including bids and estimates, as Lessor will need to document a draw-down against the Letter-of-Credit if Lessee does not remedy the items described in Lessor's written notice. If Lessor confirms to its reasonable satisfaction that Lessee has complied with all of its obligations under this Lease prior to the end of the forty-five (45) day period, Lessor immediately shall so notify Lessee, and Lessor and Lessee promptly shall instruct the issuer in writing to terminate the Letter-of-Credit; in any event, Lessor and Lessee shall so notify the issuer not later than the last day of the 45-Day Period. Lessor and Lessee acknowledge and agree that Lessee has waived its right to any notice that would be required during the 45-Day Period pursuant to Paragraph 13.1(c) of this Lease, and Lessee does not waive any other notice to which it relates is entitled under this Lease at any other time during the term hereof, as the term may be extended; under the Lease and were entitled to a Purchase Agreement Default in respect of Section 5.1(ii)thirty (day) notice to Cure, and Section 9.2(dLessee does not waive any other notice to which it is entitled under this Lease at any other time during the term, as the term may be extended;
59.3.5 If, for any reason, the Letter-of-Credit will not be renewed by the Issuer, then at least thirty (30) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal days prior to the LC Amount. Such Letter expiration date, the Issuer shall notify Lessor in writing that the Letter-of-Credit shall not be renewed and on the expiration date the entire proceeds of the Letter-of-Credit shall be delivered to the Purchaser concurrently with Lessor by the execution Issuer to be held as additional Security Deposit, without necessity of a demand;
59.3.6 If Lessee fails to meet any of the obligations under this AgreementLease, subject to all applicable notice and cure periods, Lessor shall, upon demand to the Vendor shall maintain Issuer of the Letter of Letter-of-Credit in effectwriting by a partner or authorized agent of Lessor, have the right to receive payment, to be drawn down against the Letter-of-Credit, sufficient to cover the amount in default including all costs incurred by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with Lessor as a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent result of such Indemnified Losses default or if a renewal Letter of Credit is not provided by the Vendor failure to the Purchaser at least 30 meet Lessee's obligations, within ten (10) days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu date of the Letter demand;
59.3.7 Lessee agrees and acknowledges that said Letter-of-Credit will not relieve Lessee of Credit, secure any of its obligations under Section 9.2(c)the Terms of the Lease not satisfied by the draw-down against the Letter-of-Credit; and
59.3.8 If Lessor rightfully draws down against the Letter-of-Credit pursuant to the instructions therefor and this paragraph, by providing environmental insurance wherein Lessee shall, for Lessor's benefit, increase the insurer (who Letter-of-Credit to the full amount required during the period in question as set forth in paragraph 63.3.9 or provide a replacement Letter-of-Credit in the same amount with the same terms and conditions as the original Letter-of-Credit.
59.3.9 Such replenishment or replacement of the Letter-of-Credit shall be satisfactory accomplished by Lessee within 10 days of Lessor's transmittal of demand for a draw-down against the Letter-of- Credit to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder Bank. Lessor shall deliver a copy of the LC Claim Period, PECdemand for draw-down to Lessee at the time such is transmitted to the bank that issued the Letter-of-Credit.
59.3.10 Subject to there being no default under the terms of this Lease pending, the Purchaser and the Purchaser's Affiliates for any NonLetter-PNG Related Environmental Liabilities on terms satisfactory of-Credit amount may be reduced to the Purchaser, acting reasonably, having regard to all information (amounts set forth in the "nonfollowing schedule: Month 13 of Lease $300,000.00 Month 25 of Lease $225,000.00 Month 37 of Lease $150,000.00 Month 49 of Lease $ 75,000.00
59.3.11 The Letter-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of nonof-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor Credit shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to maintained during any option period in the nonamount of Seventy-PNG information to any such insurerFive Thousand Dollars ($75,000.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Lease Agreement (Iown Holdings Inc)
Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal Subject to the LC Amount. Such Letter of Credit shall be delivered terms and conditions hereof, Borrower may at any time from time to time between the Purchaser concurrently with the execution of this Agreement, Closing Date and the Vendor shall maintain the Letter of Credit in effectTermination Date request LC Issuer to issue, including by way increase the amount of renewals for the entire LC Claim Periodor otherwise amend or extend, from time to time prior to its expiry date. The Purchaser will be entitled to present one or more Letters of Credit, provided that, after taking such Letter of Credit for payment into account:
(a) the aggregate amount of the Outstanding Revolving Loans, Swing Line Loans and Letters of Credit does not exceed the lesser of (i) the aggregate Revolving Commitments of all of Lenders and (ii) (A) the Borrowing Base at such time minus (B) the outstanding principal amount of the loans under the MGP/UPS Credit Facility;
(b) the aggregate amount of LC Obligations at such time does not exceed the LC Sublimit;
(c) the expiration date of such Letter of Credit (as extended, if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(dapplicable) but only is prior to the extent earliest to occur of (i) 12 months after the issuance thereof, and (ii) the Letter of Credit Termination Date;
(d) such Indemnified Losses Letter of Credit is to be used for general business purposes of the Borrower or if a renewal any Subsidiary;
(e) such Letter of Credit is not provided by directly or indirectly used to assure payment of or otherwise support any Indebtedness of any Person other than Indebtedness of any Loan Party (for the Vendor avoidance of doubt, such Letter of Credit may be used to assure payment of a contractual obligation of an Unrestricted Subsidiary incurred in the ordinary course of business that does not constitute Indebtedness);
(f) the issuance of such Letter of Credit will be in compliance with all applicable governmental restrictions, policies, and guidelines and will not subject LC Issuer to any cost that is not reimbursable under §4;
(g) the form and terms of such Letter of Credit are acceptable to LC Issuer in its discretion; and
(h) all other conditions in this Agreement to the Purchaser at least 30 days prior to issuance of such Letter of Credit have been satisfied. LC Issuer will honor any such request if the expiry foregoing conditions (a) through (h) (the “LC Conditions”) have been met as of the then outstanding date of issuance of such Letter of Credit; provided. LC Issuer may choose to honor any such request for any other Letter of Credit but has no obligation to do so and may refuse to issue any other requested Letter of Credit for any reason that LC Issuer in its discretion deems relevant. Notwithstanding anything to the contrary contained herein, thatLC Issuer shall not at any time be obligated to issue, amend, renew or extend any Letter of Credit if any Lender is at that time a Defaulting Lender, unless LC Issuer has entered into arrangements, including the Vendor shall maintain delivery of Cash Collateral, satisfactory to LC Issuer (in its discretion) with Borrower or such Lender to eliminate LC Issuer’s actual or potential Fronting Exposure (after giving effect to §14.5(e)) with respect to the Defaulting Lender arising from either the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding then proposed to be issued or that the Purchaser may have presented a Letter of Credit for payment earlier and all other LC Obligations as to which LC Issuer has actual or potential Fronting Exposure, as it may elect in the LC Claim Periodits discretion. At any Borrower may also from time after to time between the Closing Date, the Vendor may, in lieu of Date and the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein Credit Termination Date request that LC Issuer extend the insurer expiration date of an existing Letter of Credit or modify an existing Letter of Credit (who shall be satisfactory to the Purchaser, acting reasonablyother than an increase or extension) agrees to unconditionally indemnify, for the remainder of and LC Issuer will honor such request if the LC Claim Period, PEC, Conditions set forth in subsection (a) through (h) of this §2.10 are met and no Default exists at the Purchaser time of such request. LC Issuer shall have at all times the benefits and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory immunities (i) provided to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has Agent in §14 with respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any acts taken or omissions suffered by LC Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and documents pertaining to such insurerLetters of Credit as fully as if the term “Agent” as used in §14 included LC Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect to LC Issuer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Letter of Credit. (a) The Vendor shall secure its obligations If, under Section 9.2(c)the Lease, insofar as it relates Lessee is required or elects to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser provide Lessor with a Letter of Credit, the provisions of this Section shall apply. Any Letter of Credit naming provided by Lessee to Lessor will be issued and payable by a Pre-Approved Bank or another bank acceptable to Lessor in its sole and absolute discretion and in substantially the Purchaser form of Schedule 13, or in another form and substance acceptable to Lessor in its sole and absolute discretion, and, if not issued by a Pre-Approved Bank or by the New York branch of a major international bank acceptable to Lessor in its sole and absolute discretion from time to time, will be confirmed by and payable at the New York branch of a major international bank acceptable to Lessor in its sole and absolute discretion from time to time, and will be issued as beneficiary security for an amount equal all payment obligations of Lessee or any its Affiliates under the Lease and each Other Agreement (including any and all Losses suffered or incurred by Lessor or any of its Affiliates in respect of which Lessee or any if its Affiliates is obligated under the Lease or each Other Agreement), which shall remain in full force and effect until the Required LC Expiry Date and may be drawn down by Lessor upon demand at any time or times prior to the Required LC Amount. Such Expiry Date following (i) the occurrence of an Event of Default or a Default under clause (g) of Schedule 9, or (ii) the receipt by Lessor of notice of non-renewal of the Letter of Credit under Section 5.14(b) below.
(b) The Letter of Credit may have a validity period or periods ending prior to the Required LC Expiry Date, provided that (i) the Letter of Credit shall be delivered to renewed automatically, without further act or deed by any party, until such time as Lessor receives notice of non-renewal of the Purchaser concurrently with the execution Letter Credit, (ii) notice of this Agreement, and the Vendor shall maintain non-renewal of the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time shall be provided to time Lessor no less than 30 Business Days prior to its then scheduled expiry date. The Purchaser will , (iii) Lessor shall be entitled to present such draw the full amount of the Letter of Credit immediately in
(c) If at any time during the Term, the current issuing or confirming bank for payment if it provides the Vendor with a Notice Letter of Claim for Indemnified Losses pursuant Credit ceases to Section 9.2(c)meet the requirements set forth in the definition of Pre-Approved Bank, insofar as it relates to a Purchase Agreement Default in respect Lessee shall within five (5) Business Days after the date of Section 5.1(ii), or Section 9.2(d) but only to the extent notice from Lessor of such Indemnified Losses or decrease in credit rating, cause the Letter of Credit to be replaced by a Letter of Credit issued by another bank that meets the definition of a Pre-Approved Bank and (if a renewal requested by Lessor in its sole and absolute discretion) that such replacement Letter of Credit is not provided confirmed by another bank that meets the Vendor to the Purchaser at least 30 days prior to the expiry requirement of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of Pre-Approved Bank.
(d) If Lessor makes a drawing under the Letter of Credit, secure its obligations Lessee shall, following a demand in writing by Lessor, immediately cause the maximum amount available for drawing under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall Letter of Credit to be satisfactory restored to the Purchaser, acting reasonably) agrees level at which it stood immediately prior to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerdrawing.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Letter of Credit. (ai) The Vendor Contemporaneously with the Closing, the Company shall secure its obligations under Section 9.2(cobtain an irrevocable letter of credit (the “Letter of Credit”), insofar as it relates to a Purchase Agreement Default in respect the amount of Section 5.1(ii)$3,997,000 (the “Maximum Credit”) issued in favor of the Collateral Agent on behalf of the Purchasers, and Section 9.2(d) by providing substantially in the Purchaser with a form of Exhibit G attached hereto. The Company shall obtain such renewals, extensions or replacements of the Letter of Credit naming as necessary to ensure that the Purchaser as beneficiary for an amount equal to the LC Amount. Such Letter of Credit shall be delivered not expire prior to the Purchaser concurrently second anniversary of the Issuance Date (as defined in the Notes) (the “LC Expiration Date”), unless the Letter of Credit shall have been reduced to zero in accordance with the execution terms thereof.
(ii) The Purchasers hereby instruct the Collateral Agent as follows:
(A) At any time prior to the LC Expiration Date, provided that any portion of this Agreementthe Maximum Credit remains available under the Letter of Credit, not less than 7 Business Days (as defined in the Notes) before each Interest Date (as defined in the Notes), the Company shall issue a written notice (the “Interest Payment Notice”) to the Collateral Agent and to each Holder setting forth: (x) the amount of accrued but unpaid Interest (as defined in the Note) payable on each Holder’s (as defined in the Notes) Note that is payable on such Interest Date (the “Interest Payments”), along with reasonable detail regarding the method of calculation thereof and the facts upon which such calculation is based; (y) the applicable Interest Date; and (z) wire instructions for each Holder; provided, that if the remaining Maximum Credit allocable to any Holder pursuant to Section 4(c)(iii) below is insufficient to provide for the full payment of all accrued but unpaid Interest on such Holder’s Notes on any Interest Date, the Interest Payment Notice shall set forth an amount for such Holder equal to such Holder’s remaining share of the Maximum Credit allocable to such Holder pursuant to Section 4(c)(iii) below. Within 3 Business Days following the Collateral Agent’s receipt of the Interest Payment Notice, the Collateral Agent will notify the bank that issued the Letter of Credit (the “LC Bank”) that it is drawing down under the Letter of Credit and will instruct the LC Bank to pay on the Interest Date to each Holder the amount set forth in the Interest Payment Notice pursuant to the wire instructions set forth in the Interest Payment Notice.
(B) At any time prior to the LC Expiration Date, provided that any portion of the Maximum Credit remains available under the Letter of Credit, in the event any Holder elects to redeem all or any portion of the outstanding Notes held by it pursuant to Section 5(b) or Section 8(a) of the Notes, not less than 4 Business Days before the redemption date for such Notes provided for under the terms of the Notes (the “Redemption Notice Deadline”), the Company shall issue a written notice (the “Redemption Release Notice”) to the Collateral Agent and each Holder setting forth: (x) the portion of the Maximum Credit to be distributed to the Holder upon such redemption (the “Redemption Payment”), along with reasonable detail regarding the method of calculation thereof and the facts upon which such calculation is based; (y) the applicable redemption date; and (z) wire instructions for such Holder. Within 2 Business Days following the Collateral Agent’s receipt of the Redemption Release Notice, the Collateral Agent will notify the LC Bank that it is drawing down under the Letter of Credit and will instruct the LC Bank to pay to such Holder on the applicable redemption date the Redemption Payment set forth in the Redemption Release Notice pursuant to the wire instructions set forth in the Redemption Release Notice.
(C) If any Holder wishes to dispute the calculations of the Interest Payments set forth in the Interest Payment Notice or the Redemption Payments set forth in the Redemption Release Notice, such Holder shall deliver a written notice to the Company and the Collateral Agent (the “LC Dispute Notice”) within 1 Business Day following its receipt of the Interest Payment Notice or the Redemption Release Notice, as applicable, which LC Dispute Notice shall set forth in reasonable detail the basis for such Holder’s objection and such Holder’s calculations of the disputed amount or amounts. If the dispute relates solely to an arithmetic calculation set forth in the Interest Payment Notice or the Redemption Release Notice, as applicable, and the Vendor Collateral Agent, in its sole discretion, concurs with the Holder’s calculations set forth in the LC Dispute Notice, the Collateral Agent shall maintain send a written notice to that effect to the Company within 1 Business Day following its receipt of the LC Dispute Notice and shall be entitled to draw upon the Letter of Credit in effectaccordance with the applicable procedures set forth above, including for payment of the Interest Payments or Redemption Payments set forth in the Interest Payment Notice or the Redemption Release Notice, as applicable, as adjusted to give effect to the calculations set forth in the LC Dispute Notice. Notwithstanding the foregoing, the Collateral Agent may within 1 Business Day following its receipt of an LC Dispute Notice, in its sole discretion, deliver a written notice (the “Collateral Agent Notice”) to each Holder and the Company stating that a dispute has arisen, which Collateral Agent Notice shall attach each LC Dispute Notice received by way the Collateral Agent with respect to the applicable Interest Payment or Redemption Payment, and shall request further instructions from the Holders. Following the delivery of renewals a Collateral Agent Notice, the Company and the Required Holders (as defined in Section 9(c)) shall resolve any such dispute using the procedures set forth for dispute resolution in Section 23 of the entire LC Claim PeriodNote, and the Collateral Agent shall not take any action with respect to the disputed Interest Payments or Redemption Payments until it shall receive written instructions regarding such payments from time to the Required Holders.
(D) At any time prior to its expiry date. The Purchaser will the LC Expiration Date, provided that any portion of the Maximum Credit remains available under the Letter of Credit, upon the occurrence and during the continuance of an Event of Default under (and as defined in) the Notes, the Collateral Agent shall be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain draw under the Letter of Credit for the full LC Amount in effect Maximum Credit then available thereunder. The Collateral Agent shall hold any amounts drawn as collateral security for the entire LC Claim Period notwithstanding that obligations under the Purchaser may have presented a Notes for the benefit of the Holders and shall distribute such amounts to the Holders based upon the instructions of the Required Holders, subject to Section 4(c)(iii) below. Following any draw under the Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Datepursuant to this Section 4(c)(ii)(D), the Vendor mayCompany shall certify to the Collateral Agent and to each Holder the amount of the Maximum Credit that remains available to such Holder pursuant to Section 4(c)(iii) below.
(iii) Notwithstanding anything to the contrary set forth in this Section 4(c), in lieu of no event shall any Holder be entitled to receive total payments pursuant to draws under the Letter of Credit in excess of (x) the Maximum Credit, secure multiplied by (y) the original principal amount of Notes purchased by such Holder (or its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory predecessor in interest) pursuant to the Purchaserterms of this Agreement, acting reasonablydivided by (z) agrees the aggregate principal amount of all Notes sold by the Company under this Agreement. The Company shall certify to unconditionally indemnify, for the remainder Collateral Agent upon the Company’s delivery of the LC Claim Period, PECInterest Payment Notice and the Redemption Release Notice that the amounts set forth as payable to each Holder therein do not exceed the portion of the Maximum Credit available to any such Holder under this Section 4(c)(iii). Further, the Purchaser and Company shall promptly upon the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory written request of the Collateral Agent certify as to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as portion of the Signing Date or Maximum Credit available to each Holder of Notes at any time thereafter has in respect time.
(iv) The Company’s failure to deliver any notice required under this Section 4(c) shall not relieve the Company of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors obligations to make any payments under or subsidiaries of predecessors; providedwith respect to the Notes, however, that the Vendor and shall be solely liable for all premiums and related costs associated with such insurancedeemed a material breach of this Agreement. The Purchaser shall grant reasonable access to partial payment of any amounts due under the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies Notes out of the Purchaser and Maximum Credit will not relieve the Company of its Additional Indemnities otherwise available obligations to pay such amounts in this Article 9full in accordance with the terms of the Notes.
Appears in 1 contract
Letter of Credit. (ai) The Vendor Company shall secure its obligations under Section 9.2(cobtain an irrevocable letter of credit (the “Letter of Credit”), insofar as it relates in the amount of $10,000,000 issued in favor of the Senior Agent by a bank acceptable to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing such Senior Agent (the Purchaser with a “Letter of Credit naming the Purchaser as beneficiary for an amount equal Bank”) and in form and substance acceptable to the LC Amountsuch Senior Agent. Such The Letter of Credit shall be delivered to have an expiration date that is not earlier than 100 days after the Purchaser concurrently with Maturity Date of the execution Notes (the “LC Expiration Date”). Upon the occurrence and during the continuance of this Agreementan Event of Default under (and as defined in) any of the Notes, and the Vendor Senior Agent shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain draw under the Letter of Credit for the full Letter of Credit Amount (as defined in the Notes) than available thereunder, to be held by the Senior Agent as cash collateral for and/or applied to the Obligations in accordance with the terms of (and as defined in) the Pledge and Security Agreement. The Company shall obtain such renewals, extensions or replacements of the Letter of Credit as necessary to ensure that the Letter of Credit shall not expire prior to the LC Expiration Date (unless the Letter of Credit shall have been reduced to zero in accordance with Section 17 of the Notes prior to such date). If, at any time, the Company cannot obtain a renewal, extension or replacement of the Letter of Credit such that the Letter of Credit will expire prior to the LC Expiration Date (a “Withdrawal Event”), the Company and the Letter of Credit Bank shall each give the Senior Agent written notice of the occurrence of a Withdrawal Event at least forty-five (45) days prior to the then current expiration date of the Letter of Credit. Following a Withdrawal Event, the Senior Agent shall be entitled to draw down the Letter of Credit Amount in effect for its entirety (whether or not an Event of Default shall have occurred or be continuing under any of the entire LC Claim Period notwithstanding that Notes) and hold such amount as cash collateral subject to the Purchaser may have presented terms of the Pledge and Security Agreement.
(ii) In the event any holder of a Note requires the Company to redeem any Conversion Amount (as defined in the Notes) (such amount, the “Redemption Amount”) on any Optional Redemption Date (as defined in the Notes) in accordance with Section 9 of the Notes, the Senior Agent shall be entitled to, on behalf of any such holder, draw under the Letter of Credit for payment earlier of all or a portion of the Holder Optional Redemption Price due from the Company in connection with such Holder Optional Redemption (each as defined in the LC Claim Period. At any time after Notes).
(iii) In the Closing Dateevent that the conditions set forth in Section 17 of the Notes that trigger a reduction in the Letter of Credit Amount are satisfied, the Vendor mayCompany shall promptly deliver a written notice to the Senior Agent (the “Letter of Credit Notice”), certifying as to the satisfaction of such conditions (together with a calculation of the relevant “Profitability Target” (as defined in lieu the Notes) and the reduction of the Letter of CreditCredit Amount. Within 10 days of the receipt of the Letter of Credit Notice, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who Senior Agent shall be satisfactory issue a written instruction to the Purchaser, acting reasonably) agrees Letter of Credit Bank to unconditionally indemnify, for request the remainder reduction of the LC Claim Period, PEC, Letter of Credit Amount as set forth in the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as Letter of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerCredit Notice.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Securities Purchase Agreement (Modtech Holdings Inc)
Letter of Credit. (a) The Vendor Pursuant to each Letter of Credit, the Issuer may, in certain circumstances, request disbursements thereunder with respect to the Defaulted Receivables of the applicable Letter of Credit Obligor. Such disbursements shall secure its obligations be deemed to be Collections with respect to such Defaulted Receivables and shall be applied in accordance with the allocation provisions of SECTION 1.4(d)(ii).
(b) Upon the receipt of any Collections with respect to such Defaulted Receivables after any disbursements under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming have been made, such Collections shall be reimbursed to the Purchaser as beneficiary for Letter of Credit Issuer until the Letter of Credit Issuer has received an amount equal to the LC Amountaggregate amount of all disbursements. Such Should such amounts prove to be insufficient to reimburse the Letter of Credit Issuer in full, the Letter of Credit Issuer shall be reimbursed for any such shortfall by the Servicer (on behalf of the Seller) from the amounts, if any, payable to the Seller pursuant to SECTION 1.4(b)(iv).
(c) The Seller shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. The payment of drafts under any Letter of Credit shall be delivered to the Purchaser concurrently made in accordance with the execution terms of this Agreementsuch Letter of Credit and, and the Vendor shall maintain in that connection, the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will Issuer shall be entitled to present honor any drafts and accept any documents presented to it by the beneficiary of such Letter of Credit for payment if it provides in accordance with the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent terms of such Indemnified Losses or if a renewal Letter of Credit is not provided and believed by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount Issuer in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a good faith to be genuine. The Letter of Credit for payment earlier Issuer shall not have any duty to inquire as to the accuracy or authenticity of any draft or other drawing documents which may be presented to it, but shall be responsible only to determine that the documents delivered in connection with a drawing under such Letter of Credit comply on their face with the LC Claim Periodrequirements of that Letter of Credit. At In furtherance and extension and not in limitation or derogation of any time after of the Closing Dateforegoing, the Vendor may, in lieu of any action taken or omitted to be taken by the Letter of Credit, secure its obligations Credit Issuer in good faith in connection with the foregoing shall not put the Letter of Credit Issuer under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory any resulting liability to the PurchaserSeller or any other Person.
(d) Notwithstanding anything in this Agreement to the contrary, acting reasonably) agrees to unconditionally indemnify, upon any payment made by the Letter of Credit Issuer under any Letter of Credit honoring a demand for payment made by the remainder of the LC Claim Period, PECbeneficiary thereof, the Purchaser and the Purchaser's Affiliates Letter of Credit Issuer shall not be liable to any other Person for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas explorationany amounts paid or disbursed for any reason whatsoever, development and production operations carried out by any one or more including, without limitation, the failure of PEC such Person to receive or any of its predecessors delay by such Person in receiving all or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies part of the Purchaser and its Additional Indemnities otherwise available in this Article 9amount so paid or disbursed, or any non- application or misapplication by such beneficiary of the proceeds of such payment or disbursement.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Falcon Building Products Inc)
Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(c)As security for Operator’s full, insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii)faithful and prompt performance of, and Section 9.2(dcompliance with, all covenants, terms and conditions of this Concession Agreement on the part of Operator, Operator hereby agrees to deposit with Authority, at all times from and after a date no later than thirty (30) by providing days from the Purchaser with Effective Date, a stand-by, irrevocable letter of credit (the “Letter of Credit naming Credit”) for the Purchaser as beneficiary for an benefit of Authority, in the form of Exhibit D hereto, DRAFT in a stated principal amount equal to that is not less than the LC Amount. Such Letter amount of Credit shall be delivered to the Purchaser concurrently with the execution of this Agreementthen-current annual MAG due hereunder, and the Vendor shall maintain the Letter of Credit issued by a national banking association or state chartered bank located in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii)Kent County, or Section 9.2(d) but only an adjacent county, in Michigan and subject to examination by federal authority of the extent United States of such Indemnified Losses or if America, of good standing and having a renewal Letter of Credit is combined capital and surplus aggregating not provided by the Vendor less than Five Hundred Million and No/100 Dollars ($500,000,000.00). Operator shall provide to the Purchaser at least Authority, not less than 30 days prior to the expiry expiration date of such Letter of Credit, a replacement Letter of Credit which meets the requirements of this Section 19.1. A Letter of Credit shall remain on deposit with Authority for not less than 30 days following the expiration of the Term or earlier termination of this Concession Agreement, and, in addition to any and all other remedies available to it hereunder or otherwise, Authority shall have the right, at its sole option and at any time, to draw upon the entire stated amount of such Letter of Credit (including if Operator has failed to provide a replacement Letter of Credit prior to 30 days before the expiration date of the then outstanding current Letter of Credit; provided) and to hold and apply any proceeds of such draw in excess of amounts then due to Authority as a cash deposit hereunder. Operator hereby agrees to the deposit of any such excess proceeds with Authority. In the event of the application of any of the proceeds of a Letter of Credit to amounts due to Authority from Operator hereunder, thatOperator shall, within two days after such application of all or a portion of such proceeds, cause a replacement Letter of Credit that meets the Vendor shall maintain requirements of this Section 19.1 to be issued for the benefit of Authority in the then-required stated amount of the Letter of Credit for upon which Authority has drawn (and, upon receipt of such replacement Letter of Credit, Authority shall refund to Operator the full LC Amount in effect for amount of any excess proceeds of the entire LC Claim Period notwithstanding that prior Letter of Credit then held by Authority). Authority shall have no obligation to draw upon a Letter of Credit, and neither the Purchaser may have presented existence of such right nor the holding of a Letter of Credit itself shall cure any default or breach on the part of Operator under this Concession Agreement. Within 30 days after the expiration of the Term or earlier termination of this Concession Agreement and upon request therefor by Operator, Authority will return the proceeds of any draw under a Letter of Credit to Operator, less any amounts then due from Operator to Authority under this Concession Agreement. Operator hereby waives any right to any interest which may be earned or accrued on the proceeds of a draw under a Letter of Credit during the Term and agrees that Authority shall have no obligation to hold excess proceeds of a draw under a Letter of Credit in a segregated account. Authority may commingle such proceeds with its other funds. Performance Bond. Operator shall deliver to the Authority a performance bond and a labor and material payment bond (“Bonds”) to be kept in force throughout the construction of the Initial Capital Improvements and for payment earlier ninety (90) days thereafter. The Bonds shall be in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu amount of the Letter construction cost covering faithful performance of Creditthe Operator’s obligations hereunder and the payment of all obligations arising in connection with the construction, secure its obligations under Section 9.2(c)free of liens upon the Premises. The bonds shall name the Authority as obligee, by providing environmental insurance wherein the insurer (who and shall be satisfactory written by surety companies qualified to do business in the Purchaserstate of Michigan, acting reasonably) agrees to unconditionally indemnifyunder proper certificate of authority, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum such form and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurancesureties as the Authority may approve. The Purchaser Operator shall grant reasonable access to indemnify and hold Authority harmless from any monetary liens placed against the non-PNG information to any such insurerPremises for nonpayment of taxes, materials or labor in connection with construction.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Lease and Concession Agreement
Letter of Credit. At the Closing, Seller shall deliver to Buyer, and cause to remain outstanding until the second anniversary of the Closing Date (a) The Vendor shall secure its obligations under Section 9.2(cthe "LC Termination Date"), insofar as it relates an irrevocable standby letter of credit (the "Letter of Credit") in a face amount of Two Million Dollars ($2,000,000) and in form and substance satisfactory to Buyer and Seller and provided by a Purchase Agreement Default financial institution reasonably acceptable to Buyer, which may be drawn upon only by Buyer in respect the event that any Buyer Indemnified Party is entitled to indemnification for Damages pursuant to the provisions of Section 5.1(iiArticle 8, provided that (i) on the LC Termination Date, if one or more claims for Damages for which Seller has indemnification obligations pursuant to Article 8 is then pending ("Pending Claims"), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such or Replacement Letter of Credit for payment if it provides (as defined below) shall remain outstanding, but the Vendor with a Notice face amount of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a or Replacement Letter of Credit for payment earlier in Credit, as the LC Claim Period. At any time after case may be, shall be reduced to the aggregate amount of such Pending Claims, and (ii) on the nine (9) month anniversary of the Closing Date, the Vendor may, in lieu face amount of the Letter of Credit or Replacement Letter of Credit, secure its obligations under Section 9.2(c)as the case may be, by providing environmental insurance wherein the insurer (who shall be satisfactory reduced to an amount equal to (A) One Million Dollars ($1,000,000) plus the aggregate amount of Pending Claims on such date. In the event that the Letter of Credit or any Replacement Letter of Credit expires at a date earlier than the LC Termination Date, Seller covenants and agrees that it will provide Buyer with an extension or replacement of such Letter of Credit or Replacement Letter of Credit (subject to the Purchaser, acting reasonablyconditions set forth in the first sentence of this Section 5.12) agrees (each replacement Letter of Credit being referred to unconditionally indemnify, for as a "Replacement LC") on or prior to the remainder 30th day preceding the expiration date of the LC Claim Period, PEC, Letter of Credit issued on the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information Closing Date (the "non-PNG informationInitial LC") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors); provided, however, that in the Vendor event such Replacement LC is not issued on or prior to such date, at any time thereafter, Buyer shall have the right to draw the entire amount then available under the Initial LC (a "Conditional Draw"). In the event a Conditional Draw is made, Buyer may retain the entire amount of the Conditional Draw as a holdback (the "Holdback") which may be drawn upon only by Buyer in the event that any Buyer Indemnified Party shall be solely liable entitled to indemnification for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access Damages pursuant to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever provisions of Article 8. On the rights and remedies second anniversary of the Purchaser Closing Date, Buyer in the event of a Holdback shall deliver to Seller an amount equal to the Conditional Draw minus (A) any amounts retained by Buyer pursuant to the immediately preceding sentence and its Additional Indemnities otherwise available (B) the amount of Pending Claims existing on such date, provided that upon the final determination of all such Pending Claims, Buyer shall deliver to Seller the balance of the Conditional Draw, if any, which Buyer is not entitled to retain pursuant to this Section 5.12 and Article 8 or shall apply any Holdback toward any Damages. Seller and Buyer shall share equally the fees and other expenses incurred by Seller in this Article 9connection with the provision and maintenance of such Letter of Credit."
8. Amendment to Section 6.3 (g)
Appears in 1 contract
Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(c), insofar If an Event of Default occurs and for as long as it relates to a Purchase Agreement Default in respect of Section 5.1(ii)continues, and Section 9.2(dthe Lessor may (but shall not be obliged to) by providing call on the Purchaser with a Letter of Credit naming and use or apply the Purchaser proceeds in or towards satisfaction of any sums due and payable to the Lessor under this Agreement or to compensate the Lessor for any sums which it advances or expends as beneficiary a result of any such Event of Default. Notwithstanding any such use or application by the Lessor, the Lessee shall remain in default under this Agreement until the full amount owed by the Lessee, including interest accrued thereon pursuant to Clause 5.11, shall have been paid to the Lessor, subject to the conditions set forth in the immediately following paragraph, as a cash portion of the Commitment Fee or the Lessee procures the issue of a new Letter of Credit acceptable to the Lessor for an amount equal to the LC Amountamount so used or applied and pays to the Lessor an amount equal to the excess, if any, of (i) the amount so advanced or expended by the Lessor plus interest accrued thereon pursuant to Clause 5.11 over (ii) the amount of the Letter of Credit proceeds drawn by the Lessor and so used or applied. Such Notwithstanding the foregoing, if, and to the extent that, the form of a new Letter of Credit procured or proposed by the Lessee in accordance with this Agreement (using its best efforts and acting in good faith to procure a new Letter of Credit to the Lessor's satisfaction), is deemed unsatisfactory by the Lessor, the Lessee shall have the right to pay the equivalent amount to the Lessor in cash as a cash portion of the Commitment Fee.
(b) The Letter of Credit applicable at the Expiry Date shall not expire until 45 days after the scheduled Expiry Date.
(c) The Letter of Credit shall be delivered returned to the Purchaser concurrently with Lessee within 20 Business Days of:
(i) redelivery of the execution Aircraft to the Lessor in the condition required by Clause 12 of, and Schedule 3 to, this Agreement; or
(ii) receipt by the Lessor of the Agreed Value following a Total Loss and all other amounts due under Clause 11.1(b); or in either case, at such later time that the Lessee has paid to the Lessor all amounts which are then outstanding or will be payable under this Agreement, and PROVIDED ALWAYS that the Vendor Lessor shall maintain not be obliged to return the Letter of Credit in effectif and for so long as, including by way at the relevant time, an Event of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will Default shall have occurred and be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(ccontinuing under Clause 13.1(g) or (h), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Lease Agreement (Western Pacific Airlines Inc /De/)
Letter of Credit. At any time on or after the Delivery Date, Lessee shall be entitled, instead of paying and having the Lessor hold the Security Deposit in cash in accordance with Clause 5.1(a) above, to provide the Lessor with the Letter of Credit. In the event that the Lessee elects to provide the Letter of Credit, the following provisions shall apply:
(ai) The Vendor Lessee shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing cause the Purchaser with a Letter of Credit naming to be renewed or replaced by the Purchaser issuing bank not later than 30 days before the expiration of such Letter of Credit, and shall cause the Letter of Credit to remain in effect, as beneficiary renewed, until 90 days after the Expiry Date, subject to Clause 5.1(b)(iii) below.
(ii) If an Event of Default occurs and for as long as it continues, the Lessor may (but shall not be obliged to) call on the Letter of Credit and use or apply the proceeds in or towards satisfaction of any sums due and payable to the Lessor under this Agreement or to compensate the Lessor for any sums which it may, in its discretion, advance or expend as a result of any such Event of Default. Notwithstanding any such use or application by the Lessor, the Lessee shall remain in default under this Agreement until the full amount owed by the Lessee, including interest accrued thereon pursuant to Clause 5.11, shall have been paid to the Lessor. If the Lessor so uses or applies all or any portion of the amount available under the Letter of Credit, the Lessee shall immediately, on demand of the Lessor, procure the issue of a new Letter of Credit acceptable to the Lessor for an amount equal to the LC Amount. Such amount so used or applied, or shall pay to the Lessor an amount in cash equal to the amount so used or applied to be held pursuant to Clause 5.1(a).
(iii) The Letter of Credit shall be delivered returned to the Purchaser concurrently with Lessee within five Business Days of:
(1) redelivery of the execution Aircraft to the Lessor in the condition required by Clause 12 and Schedule 3; or
(2) receipt by the Lessor of the Agreed Value following a Total Loss and all other amounts due under Clause 11.1(b); provided, that if, upon the occurrence of any event specified in the foregoing subclause (1) or (2), any amounts payable by Lessee under this AgreementAgreement remain outstanding, and the Vendor shall maintain then the Letter of Credit in effect, including by way shall be returned to Lessee within five Business Days of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides Lessor being satisfied that the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only Lessee has irrevocably paid to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser Lessor all amounts which are at least 30 days prior to the expiry of the then that time outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerthis Agreement.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. (a) The Vendor Subject to the terms and conditions ---------------- hereof, and in reliance on the agreements set forth in clauses (c) and (e) hereof, from time to time, on any Business Day, the Issuer agrees to issue Letters of Credit for the account of the Borrower in such form as may be approved from time to time by the Issuer; provided that (i) the sum of the -------- aggregate face amount of all Letters of Credit outstanding and the aggregate amount drawn under all Letters of Credit for which the Issuer has not been reimbursed at any time shall secure its obligations not exceed $5,000,000 and (ii) the sum of the Revolving Credit Loans, the aggregate face amount of all Letters of Credit outstanding and the aggregate amount drawn under all Letters of Credit for which the Issuer has not been reimbursed shall not, at any time, exceed the Revolving Credit Commitment (as reduced from time to time pursuant to Section 9.2(c------- 2.5 and Section 2.9), insofar as it relates . --- -----------
(b) Each Letter of Credit (i) shall be opened pursuant to a Purchase Agreement Default written request from the Borrower on the Issuer's then current form of application for letter of credit which application shall be completed to the satisfaction of the Issuer and shall be delivered to the Issuer together with such other certificates, documents and other instruments and information as the Issuer may reasonably request, (ii) shall be denominated in respect U.S. dollars, (iii) shall be governed by the Uniform Customs and, to the extent not inconsistent therewith, the laws of Section 5.1(ii)the state of New York and (iv) shall expire on the Expiry Date. The Issuer shall not at any time be obligated to issue any Letter of Credit if such issuance would conflict with, or cause the Issuer or any Revolving Credit Lender to exceed any limits imposed by an applicable Requirement of Laws.
(c) The Issuer agrees to allot and Section 9.2(ddoes allot, to itself and each Revolving Credit Lender and, to induce the Issuer to issue the Letter of Credit, each Revolving Credit Lender severally and irrevocably agrees to take and does hereby take for its own account and risk an undivided participating interest in a percentage equal to such Revolving Credit Lender's Revolving Credit Commitment Percentage of the Issuer's Obligations.
(d) The Borrower agrees (i) to reimburse the Issuer forthwith upon its demand for any payment made by providing the Purchaser with Issuer under a Letter of Credit naming and (ii) to pay interest on any unreimbursed portion of any such payment from the Purchaser date of such payment until reimbursement in full thereof at a rate per annum equal to (A) prior to the date which is one Business Day after the day on which reimbursement from the Borrower for such payment is due, the rate which would then be payable on any outstanding Alternate Base Rate Loans which are not overdue and (B) thereafter, the rate which would then be payable on any outstanding Alternate Base Rate Loans which are overdue. In addition to the foregoing, the Borrower shall reimburse the Issuer for any taxes, fees, charges or other costs or expenses incurred by the Issuer in connection with such payment. All payments hereunder shall be made to the Issuer at its address for notices specified herein in Dollars in immediately available funds.
(i) In the event that the Issuer makes a payment under a Letter of Credit and is not reimbursed in full therefor forthwith, upon demand of the Issuer referred to in Section 2.21(d), the Issuer shall promptly make demand for --------------- such any amount for which it has not received reimbursement upon each Lender. Each Revolving Credit Lender unconditionally and irrevocably agrees that forthwith upon its receipt of any such demand for reimbursement, such Revolving Credit Lender shall transfer to the Issuer, in immediately available funds, an amount equal to such Revolving Credit Lender's pro rata share of the --- ---- unreimbursed portion of such payment; provided that, if such demand is made -------- prior to 12:00 noon, New York City time, on a Business Day, such Revolving Credit Lender shall make such payment to the Issuer prior to the end of such Business Day and otherwise such Revolving Credit Lender shall make such payment on the next succeeding Business Day. Whenever, at any time after the Issuer has made a payment under a Letter of Credit and has received from any Revolving Credit Lender such Revolving Credit Lender's pro rata share of the unreimbursed --- ---- portion of such payment, the Issuer receives any reimbursement on account of such unreimbursed portion or any payment of interest on account thereof, the Issuer shall distribute to such Receiving Credit Lender its pro rata share --- ---- thereof; provided that in the event that the receipt by the Issuer of such -------- reimbursement or such payment of interest (as beneficiary for the case may be) is required to be returned, such Revolving Credit Lender will return to the Issuer any portion thereof previously distributed by the Issuer to such Revolving Credit Lender.
(ii) Upon the occurrence and during the continuation of any Event of Default under Section 7.1(e) or Section 7.1(f) or, with notice from the -------------- -------------- Administrative Agent, upon the occurrence of any other Event of Default that is continuing (x) an amount equal to the LC Amountoutstanding Letters of Credit shall, without demand upon or notice to the Borrower, be deemed to have been paid or disbursed by the Issuer upon such Letters of Credit (notwithstanding that such amount may not in fact have been paid or disbursed); and (y) without further notice in the case of an Event of Default under Section 7.1(e) or Section 7.1(f) or, in the case of any other -------------- -------------- Event of Default that has occurred and is continuing, upon notice by the Administrative Agent to the Borrower of its Obligations hereunder, the Borrower shall be immediately obligated to reimburse the Issuer for the amount deemed to have been paid or disbursed by the Issuer. Such Any amount so payable by the Borrower shall be deposited by the Borrower in cash with the Administrative Agent and held as collateral security for the Obligations in connection with any Letter of Credit issued by the Issuer. The Borrower hereby grants to the Administrative Agent, for the benefit of the Issuer and the Revolving Credit Lenders, a security interest in such cash collateral to secure all Obligations of the Borrower under this Agreement and the other Loan Documents. Amounts held in such cash collateral account shall be delivered applied by the Administrative Agent to the Purchaser concurrently with the execution payments of this Agreementdrafts drawn under any Letter of Credit, and the Vendor unused portion thereof after all Letters of Credit shall maintain have expired or been fully drawn upon, if any, shall be applied to repay other Obligations. After all Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been fully satisfied and all other Obligations shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Borrower. The Borrower shall execute and deliver to the Administrative Agent, for the account of the Issuer, such further documents and instruments as the Administrative Agent may request to evidence the creation and perfection of the security interest in such cash collateral account.
(f) The Borrower shall pay to the Administrative Agent for the pro rata account of the Issuer and the Revolving Credit Lenders in respect of each Letter of Credit a fee in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only an amount equal to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the Applicable Margin then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for Eurodollar Loans (calculated on the entire LC Claim Period notwithstanding that basis of the Purchaser may have presented actual number of days elapsed over a Letter of Credit for payment earlier in 360-day year) multiplied by the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu Stated Amount of the Letter of Credit, secure its obligations under Section 9.2(csuch fee to be payable (i) on the date of issuance of such Letter of Credit (for the period from the date of issuance to the earlier of the Expiry Date of such Letter of Credit and the immediately succeeding Interest Payment Date), by providing environmental insurance wherein the insurer (who shall be satisfactory ii) thereafter, quarterly in arrears on each Interest Payment Date for each quarter prior to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerExpiry Date.
(bg) Section 9.8(a) The Borrower agrees to pay to the Issuer, for its own account, for services rendered by the Issuer, a fee in the amount and at the times referred to in the L/C Fee Letter. The Borrower shall not impairalso pay or reimburse the Issuer for such normal and customary costs and expenses as are incurred or charged by the Issuer on issuing, effect effecting payment under, amending or limit in otherwise administering any way whatsoever the rights and remedies Letter of the Purchaser and its Additional Indemnities otherwise available in this Article 9Credit.
Appears in 1 contract
Samples: Credit Agreement (Four Media Co)
Letter of Credit. On or prior to the Closing Date, the Company shall obtain an irrevocable letter of credit (a) The Vendor shall secure its obligations under Section 9.2(cthe “Letter of Credit”), insofar as it relates to a Purchase Agreement Default in respect the amount of Section 5.1(ii), and Section 9.2(d$6,400,000 issued in favor of HBK (the “LC Agent”) by providing a bank acceptable to such LC Agent (the Purchaser with a “Letter of Credit naming the Purchaser as beneficiary for an amount equal Bank”) and in form and substance acceptable to such LC Agent. Subject to the LC Amount. Such last three sentences of this Section 4(p), the Letter of Credit shall be delivered expire not earlier than two (2) years after the Issuance Date of the Notes (the “LC Expiration Date”). On each of the first eight (8) Interest Dates (as defined in the Notes), provided that the Company has made the Interest payment due pursuant to the Purchaser concurrently terms of the Notes on such Interest Date (each, a “Required Interest Payment”) and no Event of Default has occurred or is continuing pursuant to the terms of the Note, the LC Agent, at the request of the Company, shall deliver, with the execution of this AgreementCompany, and the Vendor shall maintain to the Letter of Credit Bank joint written instructions to reduce the amount of the Letter of Credit by $800,000. Upon the failure of the Company to make any Required Interest Payment or the occurrence of an Event of Default (as defined in effectthe Notes), including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will Agent shall be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain draw under the Letter of Credit for the full amounts due and payable to the Buyers pursuant to the terms of the Notes, it being understood that the LC Amount in effect Agent shall act for the entire LC Claim Period notwithstanding that benefit of the Purchaser may have presented Buyers on a pro rata basis based on the principal amount of the Notes held by each of the Buyers and hold such amount as collateral security for the obligations under the Notes for the benefit of the Buyers. The Company shall obtain such renewals, extensions or replacements of the Letter of Credit for payment earlier in as necessary to ensure that the Letter of Credit shall not expire prior to the LC Claim PeriodExpiration Date (unless the Letter of Credit shall have been reduced to zero in accordance with the terms contained in this Section 4(p) prior to such date). At If, at any time after the Closing Datetime, the Vendor mayCompany cannot obtain a renewal, in lieu extension or replacement of the Letter of Credit such that the Letter of Credit will expire prior to the LC Expiration Date (a “Withdrawal Event”), the Company and the Letter of Credit Bank shall each give the LC Agent written notice of the occurrence of a Withdrawal Event at least forty-five (45) days prior to the then current expiration date of the Letter of Credit. Following a Withdrawal Event, secure the LC Agent shall be entitled to draw down the Letter of Credit Amount in its entirety (whether or not an Event of Default shall have occurred or be continuing under any of the Notes) and hold such amount as collateral security for the obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, Notes for the remainder benefit of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerBuyers.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ista Pharmaceuticals Inc)
Letter of Credit. Lessee may deposit with Lessor in lieu of cash, an irrevocable letter of credit payable to Lessor in the amount of Forty Four Thousand and no/100ths Dollars (a$44,000.00) The Vendor shall secure its obligations in satisfaction of Lessee's obligation under Section 9.2(c)4.5 of this Lease. The letter of credit shall be issued by an institutional lender reasonably acceptable to Lessor and shall not be subject to any security arrangement between Lessee and the issuing bank at any time during the term of the letter of credit. The letter of credit shall contain language authorizing Lessor to draw upon the letter of credit if (i) Lessee is in default of any term, insofar as it relates to a Purchase Agreement Default in respect covenant or condition of Section 5.1(ii)this Lease, and Section 9.2(d(ii) by providing Lessor has incurred costs or suffered loss or damage as a result of Lessee's default. The letter of credit shall have a term of at least twelve (12) months and shall provide for drawing thereon anytime during the Purchaser with a Letter term of Credit naming the Purchaser as beneficiary for an amount equal letter of credit subject to the LC Amountconditions set forth herein. Such Letter After delivery of Credit shall be delivered a letter of credit to the Purchaser concurrently with the execution of Lessor, as long as this Agreement, and the Vendor shall maintain the Letter of Credit Lease remains in effect, including Lessee shall have no right to withdraw such letter of credit unless Lessee substitutes a replacement letter or letters of credit by way cash deposit in an equal amount with Lessor. If the letter of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days credit expires prior to the expiry expiration of the Lease term, then outstanding Letter Lessee shall be required to replace or renew the letter of Credit; providedcredit. Upon substitution of a cash deposit or replacement letter of credit in an equal amount, that, Lessor shall return the Vendor shall maintain the Letter replaced letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Periodcredit to Lessee. At any time after the Closing Date, the Vendor may, in lieu The proceeds of the Letter letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who credit shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder applied toward rent or any other sum in default as set forth in Paragraph 4.5 of the LC Claim PeriodLease. LESSOR LESSEE TEACHERS INSURANCE AND ANNUITY GASONICS, PECINC., the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchasera ASSOCIATION OF AMERICA, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.a California corporation New York corporation By /s/ JAMEX X. XXXXXXXX By [SIGNATURE ILLEGIBLE] --------------------------------- --------------------------------- Its ASSISTANT SECRETARY Its President --------------------------------- --------------------------------- By --------------------------------- Its --------------------------------- 25
Appears in 1 contract
Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates Pursuant to a Purchase Agreement Default in respect the terms of Section 5.1(ii4 of the Third Amendment, following the reduction of the L-C due to the termination of the Lease with respect to the 900 Premises, the L-C to be held by Landlord shall be in the amount of $1,881,586.10 (the “Current L-C Amount”). In the event Tenant exercises its right to use all or any portion of the Second Additional TI Allowance, and Section 9.2(dthen notwithstanding anything in the Lease to the contrary, Tenant shall be required to increase such Current L-C Amount by an amount equal to ten percent (10%) by providing of the Purchaser with Utilized Amount (the “L-C Increase Amount”). Accordingly, within ten (10) business days of Tenant’s election to utilize all or any portion of the Second Additional TI Allowance, Tenant shall provide an L-C (via delivery of a Letter of Credit naming the Purchaser as beneficiary for new L-C in an amount equal to the LC Amount. Such Letter sum of Credit shall be delivered the Current L-C Amount and the L-C Increase Amount or an amendment to the Purchaser concurrently existing L-C increasing the L-C by the L-C Increase Amount) which shall in either event be in a form reasonably acceptable to Landlord and in conformance with the execution terms of this Agreementthe Lease. To the extent that Tenant delivers a new, and replacement L-C (rather than an amendment to the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(cexisting L-C), insofar as it relates to a Purchase Agreement Default in respect Landlord shall return the existing L-C within ten (10) business days following receipt of Section 5.1(ii)such new, or Section 9.2(d) but only to replacement L-C. To the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), total amount held by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or Landlord at any time thereafter has as security for the Lease, as hereby amended, is less than the amount required, Tenant shall provide the difference to Landlord pursuant to the terms of the Lease. Landlord and Tenant will enter into a lease amendment to confirm the terms of this Section 3 in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC the event Tenant elects to utilize all or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies portion of the Purchaser and its Second Additional Indemnities otherwise available in this Article 9TI Allowance.
Appears in 1 contract
Letter of Credit. (a) The Vendor Subject to all the terms and conditions hereof and satisfaction of all conditions precedent to borrowing under this Agreement and so long as no Potential Default or Event of Default is in existence, at the Borrower's request Harris shall secure its obligations issue letters of credit (individually, an "L/C" anx xxxxectively the "L/Cs") for the account of the Borrower in an aggregate amount not to exceed $5,000,000, subject to availability under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii)the Revolving Credit, and the Banks hereby agree to participate therein as more fully described in Section 9.2(d1.7 hereof. Each L/C shall be issued pursuant to an application and agreement for letter of credit (individually, an "L/C Agreement" and collectively the "L/C Agreements") by providing in the Purchaser with form of Exhibit C hereto, shall consist of a Letter standby or trade letter of Credit naming credit, shall be in form and substance acceptable to Harris and the Purchaser as beneficiary Banks, and shall have an expiry date not more xxxx one year from the date of issuance thereof, subject to annual renewals (but in no event later than the Termination Date). The aggregate amount available to be drawn under all L/Cs issued pursuant hereto shall be deducted from the credit otherwise available under the Revolving Credit. In consideration of the issuance of L/Cs the Borrower agrees to pay Harris for an the benefit of the Banks a fee (the "L/C Participatixx Xxx") in the amount per annum equal to the LC AmountApplicable Margin for Eurodollar Loans (computed on the basis of a 360-day year and actual days elapsed) of the face amount for each L/C issued for the account of the Borrower hereunder. Such Letter In addition, the Borrower shall pay Harris (x) a fee (the "L/C Issuance Fee") in the amount per annum xxxal to (i) for standby L/Cs, one-eighth of Credit shall one percent (0.125%) of the stated amount of each standby L/C issued hereunder and (ii) for commercial L/Cs, the customary issuance fee for commercial L/Cs as may be delivered established by Harris from time to the Purchaser concurrently with the execution of this Agreementtime, and the Vendor shall maintain the Letter of Credit (y) such drawing, negotiation, amendxxxx and other administrative fees in effect, including connection with each L/C as may be established by way of renewals for the entire LC Claim Period, Harris from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG informationL/C Administrative Fee") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum ). All L/X Xxxxance Fees and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor L/C Participation Fees shall be solely liable for payable quarterly in arrears on the last day of each December, March, June and September commencing December 31, 2000 and on the Termination Date, and all premiums L/C Administrative Fees shall be payable on the date of issuance of each L/C hereunder and related costs associated with such insurance. The Purchaser shall grant reasonable access to on the non-PNG information to any such insurerdate required by Harris.
(b) Section 9.8(aThe Agent shall give prompt telephone, telex, ox xxxxcopy notice to each Bank of each issuance of, or amendment to, an L/C specifying the effective date of the L/C or amendment, the amount, the beneficiary, and the expiration date of the L/C, in each case as established originally or through the relevant amendment, as applicable, the account party or parties for the L/C, each Bank's pro rata participation in such L/C and whether the Agent has classified the L/C as a commercial, performance, or financial letter of credit for regulatory reporting purposes.
(c) shall not impair, effect or limit Notwithstanding anything contained in any way whatsoever L/C Agreement to the rights contrary: (i) the Borrower shall pay fees in connection with each L/C as set forth in Section 1.4(a) hereof, (ii) before the occurrence of an Event of Default, Harris will not call for the funding by the Borrower of any xxxxxx under an L/C issued for the Borrower's account, or for any other form of collateral security for the Borrower's obligations in connection with such L/C, before being presented with a drawing thereunder, and remedies (iii) if Harris is not timely reimbursed for the amount of any drawing xxxer an L/C on the date such drawing is paid, the Borrower's obligation to reimburse Harris for the amount of such drawing shall bear interest as xxxxified in Section 1.5 hereof. If Harris issues any L/C with an expiration date that is autxxxxxxally extended unless Harris gives notice that the expiration date will not so extxxx xeyond its then scheduled expiration date, Harris will give such notice of non-renewal before the time nxxxxxxry to prevent such automatic extension if before such required notice date (i) the expiration date of such L/C if so extended would be after the Termination Date, (ii) the Revolving Credit Commitments have been terminated, or (iii) an Event of Default exists and the Required Banks have given Harris instructions not to so permit the extension of the Purchaser expiratiox date of such L/C.
(d) The Banks shall, ratably in accordance with their respective Commitment Percentages, indemnify Harris (to the extent not reimbursed by the Borrower) agxxxxx any cost, expense (including reasonable counsel fees and its Additional Indemnities otherwise available disbursements), claim, demand, action, loss or liability (except such as result from Harris's gross negligence or willful misconduct) that Harris xxx xxxfer or incur in connection with any L/C. The xxxxxxtions of the Banks under this Article 9Section 1.4(d) and all other parts of this Section 1.4 shall survive termination of this Agreement and of all L/C Agreements, and all drafts or other documents presented in connection with drawings thereunder.
Appears in 1 contract
Samples: Secured Credit Agreement (Maverick Tube Corporation)
Letter of Credit. Lessee shall (ai) The Vendor shall secure its obligations under Section 9.2(c)maintain in effect at all times a letter of credit, insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), form and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal substance satisfactory to the LC Amount. Such Letter Lessors, issued by NationsBank of Credit Texas, N.A., or such other financial institution satisfactory to the Lessors, for the benefit of the Agent and in a face amount not less than the maximum Rent payable under the Lease in any quarter and (ii) shall cause such letter of credit to be delivered to the Purchaser concurrently Agent. The proceeds of any drawing under any such letter of credit shall be deposited in the Deposit Account (as defined in Section 5(f)(i) of the Security Agreement), and held (together with all earnings therein) as security for the obligations of the Lessee under the Lease and for the benefit of the Agent and the ratable benefit of the Lessors, and all funds in the Deposit Account shall be applied to Rent payments when due in the order of maturity, provided that during the continuance of an Event of Default, all such funds, including any earnings thereon, shall be applied to any amounts owing under the Lease, with the execution of this Agreementallocation thereof to be made as the Agent determines in its sole discretion. All such funds, and earnings thereon, shall remain in the Vendor shall maintain Deposit Account until all obligations (other than Surviving Indemnities) under the Letter Lease are paid in full. Notwithstanding the provisions of Credit any such letter of credit, in effectlieu of any automatic renewal of such letter of credit, including by way Lessee may cause the letter of renewals for credit to be renewed (i) in a decreased face amount so long as the entire LC Claim Periodface amount is not less than the maximum Rent payable under the Lease in any future quarter, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor and/or (ii) with a Notice renewal period in excess of Claim six months (or, if shorter, for Indemnified Losses pursuant to Section 9.2(ca period extending 30 days beyond the maximum Lease Term as then permitted under the terms of the Lease). Upon termination of the Lease and the payment in full of all obligations (other than Surviving Indemnities) under the Lease, insofar as it relates to a Purchase Agreement Default in respect the Agent shall return any such letter of Section 5.1(ii)credit, or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor undrawn, to the Purchaser issuer thereof for cancellation. Any such letter of credit shall not be drawn solely because of nonrenewal if the Lease is due to terminate at least 30 days prior to the expiry expiration date of the then outstanding Letter letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit credit."
(e) Section 9.10 is amended to read in its entirety as follows: "As compensation for the full LC Amount in effect performance of Agent's obligations hereunder, Lessee shall pay to Agent (a) for the entire LC Claim Period notwithstanding that first year of the Purchaser may have presented Lease Term, on the Initial Delivery Date, a Letter of Credit for payment earlier fee in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu amount of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser $15,000 and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impairfor each year thereafter during the Lease Term, effect or limit in any way whatsoever the rights and remedies on each anniversary of the Purchaser Initial Delivery Date an annual fee in the amount of $20,000 (such fee as payable from time to time being the 'Agency Fee')."
(f) Section 11.4 is amended by deleting the reference therein to "Consolidated Freightways, Inc., 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, Attn: Treasurer Fax: 415/000-0000."
(g) The definition of "Interest Rate" in Schedule X is amended by deleting the phrase "115 basis points" therein and its Additional Indemnities otherwise available in this Article 9substituting for such phrase the phrase "175 basis points."
(h) Schedule X is amended by adding the following definitions:
Appears in 1 contract
Samples: Participation Agreement (Consolidated Freightways Corp)
Letter of Credit. (a) The Vendor shall secure its obligations If, under Section 9.2(c)the Lease, insofar as it relates Lessee is required or elects to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser provide Lessor with a Letter of Credit, the provisions of this Section shall apply. Any Letter of Credit naming provided by Lessee to Lessor will be issued and payable by a Pre-Approved Bank or another bank acceptable to Lessor in its sole and absolute discretion and in substantially the Purchaser form of Schedule 13, or in another form and substance acceptable to Lessor in its sole and absolute discretion, and, if not issued by a Pre-Approved Bank or by the New York branch of a major international bank acceptable to Lessor in its sole and absolute discretion from time to time, will be confirmed by and payable at the New York branch of a major international bank acceptable to Lessor in its sole and absolute discretion from time to time, and will be issued as beneficiary security for an amount equal all payment obligations of Lessee or any its Affiliates under the Lease and each Other Agreement (including any and all Losses suffered or incurred by Lessor or any of its Affiliates in respect of which Lessee or any if its Affiliates is obligated under the Lease or each Other Agreement), which shall remain in full force and effect until the Required LC Expiry Date and may be drawn down by Lessor upon demand at any time or times prior to the Required LC Amount. Such Expiry Date following (i) the occurrence of an Event of Default or a Default under clause (g) of Schedule 9, or (ii) the receipt by Lessor of notice of non-renewal of the Letter of Credit under Section 5.14(b) below.
(b) The Letter of Credit may have a validity period or periods ending prior to the Required LC Expiry Date, provided that (i) the Letter of Credit shall be delivered to renewed automatically, without further act or deed by any party, until such time as Lessor receives notice of non renewal of the Purchaser concurrently with the execution Letter Credit, (ii) notice of this Agreement, and the Vendor shall maintain non-renewal of the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time shall be provided to time Lessor no less than 30 Business Days prior to its then scheduled expiry date. The Purchaser will , (iii) Lessor shall be entitled to present such Letter draw the full amount of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier immediately in the LC Claim Period. At event that Lessor receives any time after the Closing Date, the Vendor may, in lieu notice of non-renewal of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer ; and (who iv) a Letter of Credit shall be satisfactory remain in force at all times up to the Purchaser, acting reasonablyRequired LC Expiry Date.
(c) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or If at any time thereafter has during the Term, the current issuing or confirming bank for the Letter of Credit ceases to meet the requirements set forth in respect the definition of nonPre-Canadian petroleum Approved Bank, Lessee shall within five (5) Business Days after the date of notice from Lessor of such decrease in credit rating, cause the Letter of Credit to be replaced by a Letter of Credit issued by another bank that meets the definition of a Pre-Approved Bank and natural gas exploration, development (if requested by Lessor in its sole and production operations carried out absolute discretion) that such replacement Letter of Credit is confirmed by any one or more another bank that meets the requirement of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the nona Pre-PNG information to any such insurerApproved Bank.
(bd) Section 9.8(a) shall not impairIf Lessor makes a drawing under the Letter of Credit, effect or limit Lessee shall, following a demand in any way whatsoever writing by Lessor, immediately cause the rights and remedies maximum amount available for drawing under the Letter of Credit to be restored to the Purchaser and its Additional Indemnities otherwise available in this Article 9level at which it stood immediately prior to such drawing.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Letter of Credit. the Lessee shall be entitled, instead of paying the Security Deposit in cash in accordance with sub-clause (a) The Vendor above, to provide the Lessor with the Letter of Credit. In the event that the Lessee elects to provide the Letter of Credit, the following provisions shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(dapply:
(i) by providing Lessee shall cause the Purchaser with a Letter of Credit naming to be renewed or replaced by the Purchaser issuing bank not later than 10 Business Days before the expiration of such Letter of Credit, and shall cause the Letter of Credit to remain in effect, as beneficiary renewed, until 90 days after the scheduled Expiry Date.
(ii) If an Event of Default occurs and for as long as it continues, the Lessor may (but shall not be obliged to) call on the Letter of Credit and use or apply the proceeds in or towards satisfaction of any sums due and payable to the Lessor under this Agreement or to compensate the Lessor for any sums which it may, in its discretion, advance or expend as a result of any such Event of Default. Notwithstanding any such use or application by the Lessor, the Lessee shall remain in default under this Agreement until the full amount owed by the Lessee, including interest accrued thereon pursuant to Clause 5.9, shall have been paid to the Lessor. If the Lessor so uses or applies all or any portion of the amount available under the Letter of Credit, the Lessee shall immediately, on demand of the Lessor, procure the issue of a new Letter of Credit acceptable to the Lessor for an amount equal to the LC Amount. Such amount so used or applied, or shall pay to the Lessor an amount in cash equal to the amount so used or applied to be held pursuant to Clause 5.1(a).
(iii) The Letter of Credit shall be delivered returned to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.Lessee within five Business Days of
Appears in 1 contract
Samples: Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Letter of Credit. (a) The Vendor shall secure Joint Venturers hereby acknowledge that NOC and its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing affiliates have arranged for the Purchaser with a Letter of Credit naming to be issued for the Purchaser account of a subsidiary of NOC as beneficiary for part of obtaining the Project Financing which benefits the Joint Venture. The Joint Venturers further hereby acknowledge and agree that any dollar amount drawn under such Letter of Credit is intended to, and shall be deemed to be, a loan from NOC to the Joint Venture. Under the terms of the Guaranty, the Joint Venture or an Affiliate of NOC will be entitled to request that the Letter of Credit be drawn upon in order to fund costs incurred in connection with the construction of the Project up to an amount equal to $3,600,000 (a "Construction Draw Request"). Notwithstanding anything to the LC Amount. Such Letter of Credit contrary in the Guaranty or any other documents entered into by the Joint Venture in connection with the Project Financing (collectively, the "Loan Documents"), CADCo hereby agrees that NOC shall be delivered solely entitled to submit any Construction Draw Request on behalf of the Joint Venture (to the Purchaser concurrently with extent that such a draw request is permitted by the execution of this Agreement, and Guaranty). In the Vendor shall maintain event any draw is made on the Letter of Credit either by or on behalf of the CDA pursuant to the Loan Documents or pursuant to any Construction Draw Request, then upon the making of such draw CADCo shall immediately be required to contribute to the Joint Venture, additional Capital Contribution the sole purpose of funding the payment to NOC described below in effectthis Section 6.5, including an amount, in cash, equal to 50% of the amount of such draw (together with interest thereon at the Interest Rate from the date of such draw until the date the full amount so drawn has been contributed by way CADCo to the Joint Venture and distributed by the Joint Venture to NOC as provided below in this Section). Upon the Joint Venture's receipt of renewals for any such additional Capital Contribution from CADCo, the entire LC Claim PeriodJoint Venture shall, from time notwithstanding any other provision hereof to time prior the contrary, immediately distribute the full amount of such additional Capital Contribution by CADCo to its expiry dateNOC, in cash. The Purchaser will In the event that CADCo fails to make such required additional Capital Contributions within five days after receiving notice of a draw on the Letter of Credit, NOC shall be entitled to present such Letter receive all Available Cash of Credit for the Joint Venture otherwise distribute or payable to CADCo (prior to any payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent Joint Ventures of Booking Management Fees (or the making of any reserve therefor) out of Available Cash) until the aggregate amount of such Indemnified Losses distributions of Available Cash to NOC (as a Joint Venturer) equal the aggregate amount of such additional Capital Contributions required from, but not contributed by, CADCo together with interest thereon at the Interest Rate from the date of such draw, provided, that such a failure by CADCo shall entitle NOC to exercise the rights and remedies provided in the Agreement upon the failure of a Joint Venturer to repay a Venturer Loan. Each Joint Venturer hereby further confirms that it has obtained (in favor of NOC or if a renewal Letter of Credit its Affiliate that is not provided by the Vendor to account party on the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided) the guaranty of its principal ultimate shareholder (being Koplik, thatin the case of CADCo, and Xxxxxx X. Xxxxxxxxxxx, Xx., in the Vendor case of NOC) of payment to NOC of up to $500,000 (i.e., $500,000 for each of Messrs. Koplik and Nederlander, Sr.) of the first $1,000,000 in draws against the Letter of Credit, which guarantees shall maintain be paid on an equal, pari passu basis.
(b) The Joint Venture shall pay on demand all reasonable costs and expenses incurred by NOC and its Affiliates in connection with the preparation, issuance, delivery, recording and administration of the Letter of Credit for including, without limitations the full LC Amount reasonable fees and out-of-pocket expenses of legal counsel and all costs and expenses in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At connection with any time after the Closing Datedrawing against (including wire transfer or fees), the Vendor maymaintenance, in lieu renewal, or cancellation of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Joint Venture Agreement (Broadway Series Management Group Inc)
Letter of Credit. On the terms and conditions hereinafter set forth, ---------------- the Agent shall from time to time during the period beginning on the Effective Date and ending on the Maturity Date upon request of Borrower issue standby and/or commercial Letters of Credit for the account of Borrower (the "Letters of Credit") in such face amounts as Borrower may request. The face amount of all Letters of Credit issued and outstanding hereunder shall be considered as Advances and all payments made by the Agent on such Letters of Credit shall be considered as Advances under the Notes. Each Letter of Credit issued for the account of Borrower hereunder shall (i) be in favor of such beneficiaries as specifically requested by Borrower, (ii) have an expiration date not exceeding the earlier of (a) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii)one year or (b) the Maturity Date, and Section 9.2(d(iii) contain such other terms and provisions as may be reasonably required by providing the Purchaser with a Agent. Each Bank (other than Agent) agrees that, upon issuance of any Letter of Credit naming hereunder, it shall automatically acquire a participation in the Purchaser as beneficiary for Agent's liability under such Letter of Credit in an amount equal to such Bank's Revolving Commitment Percentage of such liability, and each Bank (other than Agent) thereby shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and shall be unconditionally obligated to Agent to pay and discharge when due, its Revolving Commitment Percentage of Agent's liability under such Letter of Credit. The Borrower hereby unconditionally agrees to pay and reimburse the LC Amount. Such Agent for the amount of each demand for payment under any Letter of Credit shall be delivered to the Purchaser concurrently that is in substantial compliance with the execution provisions of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present any such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), at or Section 9.2(d) but only prior to the extent date on which payment is to be made by the Agent to the beneficiary thereunder, without presentment, demand, protest or other formalities of such Indemnified Losses or if a renewal any kind. Upon receipt from any beneficiary of any Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit any demand for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the under such Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who Agent shall be satisfactory to promptly notify the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder Borrower of the LC Claim Period, PEC, the Purchaser demand and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory date upon which such payment is to be made by the Purchaser, acting reasonably, having regard Agent to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has such beneficiary in respect of non-Canadian petroleum such demand. Forthwith upon receipt of such notice from the Agent, Borrower shall advise the Agent whether or not it intends to borrow hereunder to finance its obligations to reimburse the Agent, and natural gas explorationif so, development submit a Notice of Borrowing as provided in Section 2.3(a) hereof. If Borrower fails to so advise Agent and production operations carried out thereafter fail to reimburse Agent, the Agent shall notify each Bank of the demand and the failure of the Borrower to reimburse the Agent, and each Bank shall reimburse the Agent for its Revolving Commitment Percentage of each such draw paid by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor Agent and unreimbursed by the Borrower. All such amounts paid by Agent and/or reimbursed by the Banks shall be solely liable for all premiums treated as an Advance or Advances under the Revolving Commitment, which Advances shall be immediately due and related costs associated with such insurance. The Purchaser payable and shall grant reasonable access to bear interest at the non-PNG information to any such insurerDefault Rate.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Credit Agreement (Cmi Corp)
Letter of Credit. (a) The Vendor On the Agreement Date Contractor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser provide Concessionaire with a Letter of Credit naming in the Purchaser form of Exhibit H-1 hereto issued by a Qualified Issuer in an amount equal to seven-and-one-half percent (7.5%) of the Contract Sum as beneficiary additional security for Contractor’s performance of its obligations hereunder. Upon achievement of Substantial Completion of the New Lanes or any portion or segment thereof for which care, custody and control has passed to VDOT pursuant to this Agreement and the Comprehensive Agreement, the amount of the Letter of Credit in favor of Concessionaire shall be reduced by $10,000,000, and Contractor shall provide VDOT with a Letter of Credit in the form of Exhibit H-2 hereto issued by a Qualified Issuer in an amount equal to $10,000,000. Upon Substantial Completion of the entire Project, the amount of the Letter of Credit issued for the benefit of Concessionaire shall be adjusted to an amount equal to the LC Amount. Such difference between (x) three percent (3%) of the Contract Sum, minus (y) $30,000,000, and be subject to draw by Concessionaire for the first two (2) years of the Warranty Period applicable to the portion of the Project other than the New Lanes, and the amount of the Letter of Credit issued for the benefit of VDOT shall be delivered adjusted to an amount equal to $30,000,000 and be subject to draw by VDOT (or Concessionaire, to the Purchaser concurrently with extent permitted pursuant to Section 7.19 of the execution ARCA) for the first two (2) years of this Agreementthe Warranty Period applicable to the New Lanes. If any General Warranty claims remain unresolved as of the date the applicable Letter of Credit (or applicable portion thereof) is otherwise permitted to expire pursuant to the preceding sentence, and Contractor shall cause the Vendor applicable Letter of Credit (or applicable portion thereof) to remain in effect through the date of resolution of such General Warranty claims, provided that the amount of the Letter of Credit (or applicable portion thereof) shall be reduced following the end of first two (2) years of the applicable Warranty Period to an amount equal to one hundred fifty percent (150%) of the total amount of such outstanding claims. For so long as Contractor is obligated to maintain the Letter of Credit in effectCredit, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(dnot later than thirty (30) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu stated expiration date of the Letter of Credit, secure its obligations under Section 9.2(c)Contractor shall renew, by providing environmental insurance wherein or cause the insurer (who shall be satisfactory to renewal of, each outstanding Letter of Credit, or replace, or cause the Purchaserreplacement of, acting reasonably) agrees to unconditionally indemnify, for the remainder each such Letter of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any Credit with one or more replacement Letters of PEC Credit from a Qualified Issuer and having a stated amount equal to that of the Letter of Credit being renewed or any replaced. For so long as Contractor is obligated to maintain the Letter of Credit, in the event (i) the issuer of a Letter of Credit shall fail to meet the requirements of a Qualified Issuer, (ii) an issuer of a Letter of Credit shall fail to honor the beneficiary’s properly documented request to draw on an outstanding Letter of Credit, or (iii) the issuer of an outstanding Letter of Credit indicated its predecessors intent not to renew such Letter of Credit, within five (5) Business Days thereafter Contractor shall provide a substitute Letter of Credit from a Qualified Issuer other than the bank that has been downgraded or subsidiaries failed to honor the outstanding Letter of predecessors; providedCredit. If Concessionaire (or VDOT) does not receive a replacement Letter of Credit from a Qualified Issuer within the time specified in either of the two preceding sentences, however, that it may draw on the Vendor full available amount of the Letter of Credit. Amounts drawn in such circumstances shall be solely liable for held directly by Concessionaire (or VDOT, as applicable) and shall be available to be applied by Concessionaire or VDOT under the conditions set forth in the Letter of Credit. In all premiums cases, the costs and related costs associated with such insurance. The Purchaser expenses of establishing, renewing, substituting, canceling, increasing, reducing or otherwise administering a Letter of Credit shall grant reasonable access to the non-PNG information to any such insurerbe borne by Contractor.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Design Build Contract
Letter of Credit. At Lessee’s option, Lessee shall have a one (a1) The Vendor shall secure its obligations under Section 9.2(ctime right to replace the cash Security Deposit with an “Irrevocable Standby Letter of Credit”, with an initial face value of One Hundred Forty-Four Thousand Seven Hundred Forty-Four and No/100 Dollars ($144,744.00) (the “Letter of Credit”), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal subject to the LC Amount. Such following terms and conditions:
5.4.1 The Letter of Credit shall be delivered in favor of Lessor, and its successors and assigns, and shall be issued by a bank acceptable to Lessor with a Standard & Poors rating of “A” or better, shall comply with all of the Purchaser concurrently with the execution terms and conditions of this Agreement, Section 5.4 and shall otherwise be in form acceptable to Lessor. The initial Letter of Credit shall have an expiration date of no earlier than twelve (12) months after the Vendor date issued.
5.4.2 The Letter of Credit or any replacement Letter of Credit shall maintain be irrevocable for the term thereof and shall automatically renew on a year to year basis until a period ending no earlier than two (2) months after expiration of the Initial Term (the “LOC Expiration Date”) without any action whatsoever on the part of Lessor; provided that the issuing bank shall have the right not to renew the Letter of Credit by giving written notice to Lessor not less than sixty (60) days prior to the expiration of the then current term of the Letter of Credit that it does not intend to renew the Letter of Credit. Lessee understands that the election by the issuing bank not to renew the Letter of Credit shall not, in effectany event, including by way diminish the obligation of renewals for Lessee to deposit the entire LC Claim PeriodSecurity Deposit or, in the alternative, maintain such an irrevocable Letter of Credit in favor of Lessor through the LOC Expiration Date.
5.4.3 Lessor shall have the right from time to time to make one or more draws on the Letter of Credit at any time that Lessor has the right to use all or a part of the Security Deposit pursuant to this Lease, and the proceeds may be applied as permitted under this Lease.
5.4.4 Lessee acknowledges and agrees (and the Letter of Credit shall so state) that the Letter of Credit shall be honored by the issuing bank, without inquiry, upon presentation by Lessor and regardless of whether Lessee disputes Lessor’s claim to such funds.
5.4.5 So long as Lessee is not in default under this Lease beyond applicable cure periods set forth in Section 29.1 below (in which event the Letter of Credit shall not be reduced as otherwise provided for herein), the Letter of Credit shall be reduced by the amounts set forth below on the corresponding first day of each month of the Lease Term set forth below (except that for month 65 of the Lease Term, the reduction shall be effective as of the last day of said month): 13 $24,000.00 $ 120,744.00 25 $24,000.00 $ 96,744.00 37 $24,000.00 $ 72,744.00 49 $24,000.00 $ 48,744.00 61 $24,000.00 $ 24,744.00 65 $24,744.00 $ 0.00
5.4.6 In the event of a transfer of Lessor’s interest in the Premises, Lessor shall have the right to transfer the Letter of Credit to the transferee and Lessee shall take whatever action necessary to effectuate such transfer and thereupon the Lessor shall, without any further agreement between the parties, be released by Lessee from all liability therefor, and it is agreed that the provisions hereof shall apply to every transfer or assignment of said Letter of Credit to a new landlord. Without limiting the generality of the foregoing, if the Letter of Credit expires earlier than the LOC Expiration Date, or the issuing bank notifies Lessor that it shall not renew the Letter of Credit, Lessor shall accept a renewal thereof or substitute letter of credit (such renewal or substitute Letter of Credit to be in effect not later than thirty (30) days prior to its expiry datethe expiration of the initial Letter of Credit), irrevocable and automatically renewable through the LOC Expiration Date upon the same terms as the expiring Letter of Credit or upon such other terms as may be acceptable to Lessor. The Purchaser will be entitled to If, however, (x) the Letter of Credit is not timely renewed, or (y) a substitute Letter of Credit, complying with all of the terms and conditions of this Section 5.4 is not timely received, Lessor may present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided issuing bank, and the entire sum so obtained shall be paid to Lessor and shall be held by Lessor in accordance with Section 5.1 above, and thereafter Lessee shall no longer have the Vendor right throughout the Lease Term to the Purchaser at least 30 days prior to the expiry of the then outstanding replace said cash security with another Letter of Credit; provided. Furthermore, that, Lessor shall be entitled to prompt reimbursement by Lessee of any attorneys’ fees incurred by Lessor in connection with the Vendor shall maintain the review of any proposed substitute Letter of Credit for Credit. Notwithstanding anything to the full LC Amount contrary in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor maythis Section 5, in lieu of no event shall Lessee be entitled to satisfy its security obligations hereunder by combining both cash and the Letter of Credit, secure its obligations under except as provided in Section 9.2(c)5.2 (i.e., by providing environmental insurance wherein Lessee must either deliver to Lessor the insurer (who shall be satisfactory entire Security Deposit in cash or, in the alternative, deliver to Lessor the PurchaserLetter of Credit, acting reasonably) agrees to unconditionally indemnifyit being the express intent of the parties that Lessee may not, for the remainder example purposes only, deliver to Lessor fifty percent (50%) of the LC Claim Period, PEC, the Purchaser Security Deposit in cash and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as a Letter of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated Credit with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurera $100,000.00 initial face value).
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Office Lease (Renegy Holdings, Inc.)
Letter of Credit. (ai) The Vendor On or prior to the Closing Date, the Company shall secure its obligations under Section 9.2(cobtain an irrevocable letter of credit (the "Letter of Credit"), insofar as it relates to a Purchase Agreement Default in respect the amount of Section 5.1(ii), and Section 9.2(d$10,000,000 issued in favor of Kings Road Investments Ltd. (the "LC Agent") by providing a bank acceptable to such LC Agent (the Purchaser with a "Letter of Credit naming the Purchaser as beneficiary for an amount equal Bank") and in form and substance acceptable to such LC Agent. Subject to the LC Amount. Such last three sentences of this Section (q)(i), the Letter of Credit shall be delivered to expire not earlier than 91 days after the Purchaser concurrently with Maturity Date of the execution Notes (the "LC Expiration Date"). Upon the occurrence and during the continuance of this Agreementan Event of Default under (and as defined in) any of the Aggregate Notes, and the Vendor LC Agent shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain draw under the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier Amount (as defined in the Aggregate Notes) then available thereunder, it being understood that the LC Claim PeriodAgent shall act for the benefit of the Buyers on a pro rata basis based on the principal amount of the Aggregate Notes held by each of the Buyers and hold such amount as collateral security for the obligations under the Aggregate Notes for the benefit of the Buyers. At The Company shall obtain such renewals, extensions or replacements of the Letter of Credit as necessary to ensure that the Letter of Credit shall not expire prior to the LC Expiration Date (unless the Letter of Credit shall have been reduced to zero in accordance with the terms contained in this Section 4(q) prior to such date). If, at any time after the Closing Datetime, the Vendor mayCompany cannot obtain a renewal, in lieu extension or replacement of the Letter of Credit such that the Letter of Credit will expire prior to the LC Expiration Date (a "Withdrawal Event"), the Company and the Letter of Credit Bank shall each give the LC Agent written notice of the occurrence of a Withdrawal Event at least forty-five (45) days prior to the then current expiration date of the Letter of Credit. Following a Withdrawal Event, secure the LC Agent shall be entitled to draw down the Letter of Credit Amount in its entirety (whether or not an Event of Default shall have occurred or be continuing under any of the Notes) and hold such amount as collateral security for the obligations under Section 9.2(c)the Notes for the benefit of the Buyers.
(ii) If more than $23 million of the Aggregate Notes are converted, by providing environmental insurance wherein the insurer (who shall be satisfactory redeemed or amortized pursuant to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder terms of the LC Claim Period, PECAggregate Notes, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory Company shall promptly deliver a notice to the Purchaser, acting reasonably, having regard to all information LC Agent (the "nonLC Reduction Notice"), certifying as to the occurrence of such event, the aggregate principal amount then outstanding under the Aggregate Notes, and the amount by which the Letter of Credit Amount shall be reduced, such reduction amount to equal one-PNG information") that the Purchaser as half of the Signing Date or at any time thereafter difference between $17 million and the aggregate principal amount of the Aggregate Notes then outstanding. After delivery of the initial LC Reduction Notice, if the outstanding principal amount of the Aggregate Notes has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out been reduced by any one $2 million or more from the time of PEC or any the prior LC Reduction Notice, the Company may deliver a subsequent LC Reduction Notice to the LC Agent certifying as to the occurrence of its predecessors or subsidiaries such event, the aggregate principal amount then outstanding under the Aggregate Notes, and the amount by which the Letter of predecessors; provided, however, that the Vendor Credit Amount shall be solely liable for all premiums reduced, such reduction amount to equal the difference between (A) one-half of the difference between (i) $17 million and related costs associated with (ii) the aggregate principal amount of the Aggregate Notes then outstanding and (B) the aggregate amount of any prior reductions of the Letter of Credit Amount. Within 10 days of the receipt of any such insurance. The Purchaser LC Reduction Notice, the LC Agent shall grant reasonable access issue a written instruction to the non-PNG information Letter of Credit Bank to any such insurerrequest the reduction of the Letter of Credit Amount to the Company as set forth in the LC Reduction Notice.
(biii) Section 9.8(a) If the Company obtains FDA Approval (as defined in the Notes), the Company shall not impairpromptly deliver a written notice to the LC Agent (the "Letter of Credit Notice"), effect or limit in any way whatsoever certifying as to the rights occurrence of such event and remedies a copy of such FDA Approval. Within 10 days of the Purchaser receipt of the Letter of Credit Notice, the LC Agent shall issue a written instruction to the Letter of Credit Bank to request the release and its Additional Indemnities otherwise available return of the Letter of Credit Amount to the Company.
(iv) Notwithstanding the foregoing, if the LC Agent reasonably disagrees with the contents of either a LC Reduction Notice or a Letter of Credit Notice or the Company disagrees with any action taken or omitted to be taken by the LC Agent, such party shall use the dispute resolution procedures contained in this Article 9Section 25 of the Notes.
Appears in 1 contract
Letter of Credit. Any Event of Default for purposes of this Section 35 shall mean an Event of Default that is monetary in nature or an Event of Default that has liquidated into a monetary Event of Default. Concurrent with Tenant’s execution and delivery of this Lease, Tenant shall deliver to Landlord an unconditional, irrevocable letter of credit (“LC”) in the original amount of Four Hundred Thousand and no/100 Dollars ($400,000.00) (the “LC Stated Amount”). The LC shall be held by Landlord as security for the faithful performance by Tenant of all of the terms, covenants and conditions of this Lease to be kept and performed by Tenant, and the parties hereto acknowledge and agree that the LC does not constitute and shall not, in any event, be deemed to constitute a security deposit. The LC shall be issued by a national money center bank reasonably acceptable to Landlord, and shall be in the form attached hereto as Exhibit J. Tenant shall pay all expenses, points and/or fees incurred in obtaining and renewing the LC. The LC shall be effective from the date of delivery thereof through the date which is one hundred (100) days after the expiration of the Lease Term (the “LC Expiration Date”). The LC may be re-issued, renewed or replaced for annual periods, provided that the LC Stated Amount is not reduced except as expressly provided below. Each reissue, renewal or replacement LC shall be in the form attached hereto as Exhibit J, and shall be subject to Landlord’s prior written approval. The LC Stated Amount shall be reduced by One Hundred Thousand and 0/100 Dollars ($100,000.00) on the day after the expiration of the twenty-sixth (26th) month following the Commencement Date and shall continue to be reduced by such amount following the expiration of subsequent one (I) year periods (herein, each a “Reduction Date”), subject to the provisions of Subparagraphs (a) The Vendor shall secure its obligations under Section 9.2(c)and (b) immediately below, insofar until it has been reduced to $100,000.00, at which amount it will remain until the expiration of the Term (as it relates may be extended).
(a) Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing on a Reduction Date, or if an Event of Default would exist and be continuing on a Reduction Date but Landlord is barred by applicable law from sending a notice of default to Tenant with respect thereto, or if Tenant is in default under this Lease and Tenant has received notice thereof as required by this Lease, but failed to cure such default within the time period permitted under this Lease or such lesser time as may remain before a Purchase Agreement Default in respect of Section 5.1(ii)Reduction Date, and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to then the LC Amount. Such Letter of Credit Stated Amount shall not be reduced on such Reduction Date (but shall be delivered to reduced upon the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent curing of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provideddefault, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; providedsubject, however, that to Landlord’s draw on the Vendor shall be solely liable for all premiums and related costs associated LC as permitted hereunder in connection with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insureran Event of Default).
(b) Section 9.8(aTenant hereby covenants to provide to Landlord not less than thirty (30) days prior to each Reduction Date, a certificate signed by an authorized officer or manager of Tenant stating to the best knowledge of the certifying officer or manager, Tenant’s net worth (i.e., the amount by which the sum of Tenant’s assets, excluding goodwill but including current accounts receivable, exceeds Tenant’s liabilities) as of a date not earlier than twelve (12) months prior to the applicable Reduction Date. If Tenant’s net worth as of such date is a negative number, or if Tenant fails to provide the certification as required hereunder, then the LC Amount shall not impairbe reduced on the applicable Reduction Date.
(c) If, effect or limit in any way whatsoever following the rights and remedies IPO, Tenant’s “net worth” is greater than the aggregate amount of the Purchaser remaining gross lease payments over the remainder of the Term as it may be extended, the LC shall be returned to Tenant and its Additional Indemnities otherwise available (subject to the following sentence) Tenant shall not be required to obtain any future LC. Should Tenant’s tangible net worth subsequently fall below the remaining gross lease payments over the remainder of the Term as it may be extended, Tenant will again be required to deliver an LC in accordance with the terms of this Article 9Section, subject to any and all reductions that would have occurred on any subsequently occurring Reduction Date. As used herein, “net worth” shall mean the amount by which the sum of Tenant’s assets, excluding goodwill but including current accounts receivable, exceeds Tenant’s liabilities.
Appears in 1 contract
Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently Concurrently with the execution of this Agreementthe Sublease, and the Vendor Sublessor shall maintain the deliver to Sublessee an irrevocable, unconditional, standby Letter of Credit (“LOC”) in effectthe amount of $6,200,000.00 from a financial institution reasonably approved by Sublessee (“Issuer”) to secure Sublessor’s obligation to Sublessee that it will perform all of its obligations under the Master Lease for the initial term of the Sublease and for any extended period of attornment required by Master Lessor in its Consent to this Sublease. The LOC shall provide that draws, including by way of renewals for the entire LC Claim Periodpartial draws, from time to time prior to its expiry date. The Purchaser at Sublessee’s election will be honored upon the delivery to Issuer a certificate signed by Sublessee, or its authorized agent, that Sublessee is entitled to present such Letter of Credit for payment if it provides make the Vendor with a Notice of Claim for Indemnified Losses requested draw pursuant to Section 9.2(c), insofar the terms of the Sublease. If Sublessor fails to pay rent or any other sums as it relates to a Purchase Agreement Default in respect of Section 5.1(ii)and when due under the Master Lease, or Section 9.2(d) but only otherwise defaults under the Master Lease, Sublessee may, to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided called upon by the Vendor Master Lessor to the Purchaser at least 30 days prior pay amounts in excess of those to the expiry be paid under this Sublease, use, apply or retain all or any portion of the then outstanding Letter LOC for payment of Credit; providedany sum for which Sublessor is obligated under the Master Lease. Any draw or partial draw of the LOC shall not constitute a waiver by Sublessee of its right to enforce its other remedies hereunder, that, the Vendor at law or in equity. The LOC shall maintain the Letter of Credit for the full LC Amount be in effect for the entire LC Claim Period notwithstanding initial term of this Sublease and for any extended period of attornment required by Master Lessor in its Consent to this Sublease. The LOC will automatically renew each year during the Sublease term unless the beneficiary under the LOC is given at least thirty (30) days prior notice of a non-renewal by the issuing bank and Sublessee shall be able to draw on the LOC in the event of such notice. The LOC shall be adjusted up or down on each anniversary of the Commencement Date of the Sublease to reflect the total difference (undiscounted) between the Fair Market Value and the remaining rent due under the Sublease, except there shall be no downward adjustment if Sublessor is in default under the terms of the Master Lease. Example: Assume there are five (5) years remaining in the term and that the Purchaser may have presented a Letter of Credit for payment earlier in average remaining rental rate is $3.09 per square foot per month. If the LC Claim Period. At any time after Sublessor and Sublessee agree that the Closing Datethen Fair Market Value is $4.00 per square foot per month with four percent (4%) annual increases, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PECaverage Fair Market Value is $4.33 per square foot per month. Given these numbers, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory LOC would be adjusted to the Purchaser, acting reasonably, having regard to $5,580,000.00 [($4.33 - $3.09) x 75,000 SF x 60 months = $5,580,000)]. Sublessee shall pay all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs reasonable fees associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurersaid LOC.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Sublease Agreement (Roxio Inc)
Letter of Credit. (ai) The Vendor Upon the terms and subject to the conditions hereof and of Applicable Law, the Lender agrees, upon the request of the Borrower, to issue Letters of Credit (and to extend Letters of Credit previously issued hereunder) payable in Dollars from time to time after the Effective Date and prior to the Commitment Termination Date, provided, however, that (A) the Borrower shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii)not request, and Section 9.2(d) by providing the Purchaser with a Lender shall not issue, any Letter of Credit naming if, after giving effect thereto, the Purchaser as beneficiary for an sum of the then current L/C Exposure, plus the aggregate principal amount equal to of all Loans then outstanding would exceed the LC Amount. Such Commitment then in effect and (B) the Borrower shall not request, and the Lender shall not issue (or extend), any Letter of Credit having an expiration date (x) later than the tenth day prior to the Commitment Termination Date or (y) more than one year after its date of issuance.
(ii) Each Letter of Credit may, at the option of the Lender, provide that the Lender may (but shall not be required to) pay all or any part of the maximum amount which may at any time be available for drawing thereunder to the beneficiary thereof upon the occurrence or continuation of an Event of Default and the acceleration of the maturity of the Loans, provided that, if payment is not then due to the beneficiary, the Lender shall deposit the funds in question in a segregated account with the Lender to secure payment to the beneficiary and any funds so deposited shall be delivered paid to the Purchaser concurrently with the execution beneficiary of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time if conditions to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), are satisfied or Section 9.2(d) but only returned to the extent of such Indemnified Losses or Lender (or, if a renewal Letter of Credit is not provided by the Vendor all Obligations shall have been paid in full in cash, to the Purchaser at least 30 days prior Borrower) if no payment to the expiry of beneficiary has been made and the then outstanding Letter of Credit; provided, that, the Vendor shall maintain final date available for drawings under the Letter of Credit has passed. Each payment or deposit of funds by the Lender as provided in this paragraph shall be treated for all purposes of this Loan Agreement as a drawing duly honored by the full LC Amount in effect for Lender under the entire LC Claim Period notwithstanding that related Letter of Credit.
(b) Whenever the Purchaser may have presented Borrower desires the issuance of a Letter of Credit for payment earlier in Credit, it shall deliver to the LC Claim PeriodLender a written notice no later than 2:00 p.m. (New York City time) at least three (3) Business Days prior to the proposed date of issuance. At any time after That notice shall specify (i) the Closing Dateproposed date of issuance (which shall be a Business Day), (ii) the Vendor may, in lieu face amount of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein (iii) the insurer expiration date of the Letter of Credit and (who iv) the name and address of the beneficiary. Such notice shall be satisfactory accompanied by a brief description of the underlying transaction and upon request of the Lender, the Borrower shall provide additional details regarding the underlying transaction. Concurrently with the giving of written notice of a request for the issuance of a Letter of Credit, the Borrower shall provide a precise description of the documents and the verbatim text of any certificate to be presented by the beneficiary of such Letter of Credit which, if presented by such beneficiary prior to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder expiration date of the LC Claim PeriodLetter of Credit, PEC, would require the Purchaser and Lender to make payment under the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as Letter of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessorsCredit; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant Lender, in its reasonable access to the non-PNG information to discretion, may require customary changes in any such insurerdocuments and certificates to be presented by the beneficiary.
(bc) The acceptance and payment of drafts under any Letter of Credit shall be made in accordance with the terms of such Letter of Credit and the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 500, as adopted or amended from time to time. The Lender shall be entitled to honor any drafts and accept any documents presented to it by the beneficiary of such Letter of Credit in accordance with the terms of such Letter of Credit and believed by the Lender in good faith to be genuine. The Lender shall not have any duty to inquire as to the accuracy or authenticity of any draft or other drawing documents which may be presented to it, but shall be responsible only to determine in accordance with customary commercial practices that the documents which are required to be presented before payment or acceptance of a draft under any Letter of Credit have been delivered and that they comply on their face with the requirements of that Letter of Credit.
(d) The Borrower is absolutely, unconditionally and irrevocably obligated to reimburse all amounts drawn under each Letter of Credit. If any draft is presented under a Letter of Credit, the payment of which is required to be made at any time on or before the Commitment Termination Date, then payment by the Lender of such draft shall constitute a Loan hereunder with an intitial Interest Period of one month and interest shall accrue from the date the Lender makes payment on such draft under such Letter of Credit. If any draft is presented under a Letter of Credit, the payment of which is required to be made after the Commitment Termination Date or at a time when an Event of Default or Default shall have occurred and then be continuing, then the Borrower shall immediately pay to the Lender, in immediately available funds, the full amount of such draft together with interest thereon at a rate per annum of 2% in excess of the Base Rate from the date on which the Lender makes such payment of such draft until the date it receives full reimbursement for such payment from the Borrower. The Borrower further agrees that the Lender may reimburse itself for such drawing from the balance in any other account of the Borrowers maintained with the Lender or any of its Affiliates.
(e) The Borrower agrees to pay the following amounts to the Lender with respect to Letters of Credit issued by it hereunder:
(i) with respect to the issuance, confirmation, amendment or transfer of each Letter of Credit and each drawing made thereunder, documentary and processing charges in accordance with the Lender's standard schedule for such charges in effect at the time of such issuance, confirmation, amendment, transfer or drawing, as the case may be, together with any additional chargers imposed any confirming or advising bank; and
(ii) a commission payable quarterly in advance (commencing on the date of issuance of any Letter of Credit and continuing so long as such Letter of Credit or any draft drawn thereunder remains outstanding) computed at a rate per annum of 0.45% of the face amount of such Letter of Credit; and
(f) If by reason of (i) any change in applicable law after the Effective Date, or in the interpretation or administration thereof (including, without limitation, any request, guideline or policy not having the force of law) by any Governmental Authority charged with the administration or interpretation thereof, or (ii) compliance by the Lender with any direction, request or requirement (whether or not having the force of law) issued after the Effective Date by any Governmental Authority or monetary authority, including, without limitation, any change whether or not proposed or published prior to the Effective Date and any modifications to Regulation D occurring after the Effective Date:
(A) the Lender shall be subject to any tax, levy, impost, duty, fee, charge, deduction or withholding of any nature with respect to any Letter of Credit (other than withholding tax imposed by the United States of America or any other tax, levy, impost, duty, fee, charge, deduction or withholding (1) that is measured with respect to the overall net income of the Lender , and that is imposed by the United States of America, or by the jurisdiction in which the Lender is incorporated, or the Lender has its principal office or a presence which is not otherwise connected with, or required by, this transaction (or any political subdivision or taxing authority thereof or therein) or (2) that is imposed solely by reason of the Lender failing to make a declaration of, or otherwise to establish, non-residence or to make any other claim for exemption, or otherwise to comply with any certification, identification, information, documentation or reporting requirements prescribed under the laws of the relevant jurisdiction, in those cases where the Lender may properly make the declaration or claim or so establish non-residence or otherwise comply), or to any variation thereof or to any penalty with respect to the maintenance or fulfillment of its obligations under this Section 2.12, whether directly or by such being imposed on or suffered by the Lender;
(B) the basis of taxation of any fee or amount payable hereunder with respect to any Letter of Credit or any participation therein shall be changed;
(C) any reserve, deposit or similar requirement is or shall be applicable, imposed or modified in respect of any Letter of Credit issued by the Lender; or
(D) there shall be imposed on the Lender any other condition regarding this Section 2.12, any Letter of Credit or any participation therein; and the result of the foregoing is to directly or indirectly increase the cost to the Lender of issuing, making or maintaining any Letter of Credit or of purchasing or maintaining any participation therein, or to reduce the amount receivable in respect thereof by the Lender, then and in any such case the Lender may, at any time, notify the Borrower, and the Borrower shall promptly pay the Lender upon its demand such amounts as the Lender may specify to be necessary to compensate it for such additional cost or reduced receipt. The determination by the Lender of any amount due pursuant to this Section 2.12 as set forth in a certificate setting forth the calculation thereof in reasonable detail shall, in the absence of manifest error, be final, conclusive and binding on all of the parties hereto.
(g) If at any time when an Event of Default shall have occurred and be continuing, any Letters of Credit shall remain outstanding, then the Lender may require the Borrower to deliver to it Cash Equivalents in an amount equal to the full amount of the L/C Exposure or to furnish other security acceptable to the Lender. Any amounts so delivered pursuant to the preceding sentence shall be applied to reimburse the Lender for the amount of any drawings honored under Letters of Credit; provided, however, that if prior to the Maturity Date, (i) no Default or Event of Default is then continuing, then the Lender shall return all of such collateral relating to such deposit to the Borrower if requested by it or (ii) Letters of Credit shall expire or be returned by the beneficiary so that the amount of the Cash Equivalents delivered to the Lender hereunder shall exceed the then current L/C Exposure, then such excess shall first be applied to pay any Obligations then due under this Loan Agreement and the remainder shall be returned to the Borrower.
(h) Notwithstanding the termination of the Commitments and the payment of the Loans, the obligations of the Borrower under this Section 2.12 shall remain in full force and effect until the Lender shall have been irrevocably released from its obligations with regard to any and all Letters of Credit."
(H) The last sentence in Section 4.1 to the Loan Agreement shall be amended to insert the following after the word "Obligations": "and the L/C Exposure has been reduced to zero,"
(I) The lead in to Section 7 of the Loan Agreement is hereby amended to insert the following after the words "has terminated": "and the L/C Exposure has been reduced to zero,"
(J) Section 9.8(a7.15(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser Loan Agreement is hereby amended to insert the following after the words "interest on the Loans" "plus the then current L/C Exposure;"
(K) The lead in to Section 8 of the Loan Agreement is hereby amended to insert the following after the words "has terminated": "and the L/C Exposure has been reduced to zero,"
(L) The lead in to Section 9.2 is hereby amended in its Additional Indemnities otherwise available entirety to read as follows: "It shall be a condition precedent to all Loans (including the initial Loan hereunder) and to the issuance of each Letter of Credit that on the date of such Loan or issuance of a Letter of Credit the following statements shall be true (and each request for a Loan or issuance of a Letter of Credit shall constitute a representation and warranty by the Borrower that on the date of such Loan or such issuance of Letter of Credit that such statements are true)."
(M) Section 9.2(a) is hereby amended in its entirety to read as follows: "After giving effect to such Loan and any such L/C Exposure, the total of all Loans outstanding plus any L/C Exposure will not exceed the Commitment;"
(N) Section 9.2(b) and (c) are hereby amended to insert the following after the words "such Loan": "or issuance of such Letter of Credit"
(O) The last paragraph in Section 9.2 is hereby amended in its entirety to read as follows: "In addition, it shall be a condition precedent to all Loans (including the initial Loan) and all issuances of Letters of Credit that after giving effect to such Loan or such issuance of a Letter of Credit, the aggregate market value of the Collateral shall be equal to or exceed 250% of the sum of the Required Amount plus the principal amount of the Loans outstanding plus any L/C Exposure together with accrued and unpaid interest thereon plus any other amounts due and owing under this Article 9Agreement (in each case, as determined on the most recent date for which the Borrower calculates its aggregate Net Asset Value (but in no event earlier than ten (10) Business Days prior to the making of such Loan or issuance of such Letter of Credit) and as calculated in accordance with the determination of such Net Asset Value)."
(P) Section 10.1(b) of the Loan Agreement is hereby amended to insert the following after the words "interest thereon": "plus the then current L/C Exposure"
(Q) Section 10.2(a) is hereby amended to insert the following after the words "Lender may" in the last sentence: "demand Cash Equivalents in an amount equal to the full amount of the L/C Exposure or to furnish other securities therefor acceptable to the Lender, and may"
(R) Section 11.3(iv) of the Credit Agreement is hereby amended to insert the following after the words "any Loan hereunder": "or the issuance of any Letter of Credit"
(S) Section 11.10(a) of the Loan Agreement is hereby amended to insert the following clause at the end of such section: "EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS, INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500 AS ADOPTED OR AMENDED FROM TIME TO TIME (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK."
(T) Section 11.19 of the Loan Agreement is hereby amended to insert the following after the words "the commitment terminated" in the second sentence: ", the L/C Exposure has been reduced to zero,"
Appears in 1 contract
Samples: Loan and Security Agreement (Belcrest Capital Fund LLC)
Letter of Credit. As additional security for the performance of every provision of this Sublease to be performed by Sublessee, Sublessee shall deposit with Sublessor on or before the Commencement Date, an unconditional, irrevocable sight draft letter of credit in the principal amount of Two Hundred Fifty Thousand Dollars (a$250,000.00) The Vendor shall secure its obligations under Section 9.2(c(as may be amended, extended or replaced, "Letter of Credit"), insofar in form and content reasonably acceptable to Sublessor (including, but not limited to, a provision that any termination or cancellation thereof not be effective until at least ten (10) days after delivery of written notice to Sublessor of such termination or cancellation) and drawn on a commercial lender reasonably acceptable to Sublessor, having a term equal to, or being automatically renewable to, January 14, 2003, subject to the second paragraph of this section. Upon any default beyond applicable notice and cure periods ("Event of Default") pursuant to the terms of this Sublease, without waiver of any rights that Sublessor may have under this Sublease or at law or in equity as it relates a result of an Event of Default, Sublessor shall have the right to a Purchase Agreement Default draw upon the Letter of Credit, in whole or in part, either prior to, concurrently with or after Sublessor's application of all or any portion of the Security Deposit, for payment of any sums as provided in this section with respect to application of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Security Deposit. If all or any portion of the Letter of Credit naming is drawn upon by Sublessor hereunder, Sublessee shall, within ten (10) days after written demand therefore, restore the Purchaser as beneficiary for an amount equal to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution its original amount, or if drawn upon in full, deliver to Sublessor a replacement Letter of this AgreementCredit, and Sublessee's failure to do so shall constitute an Event of Default under this Sublease. In addition, the Vendor shall maintain failure at any time by Sublessee to keep the Letter of Credit in effect, including by way full force and effect as required hereunder shall constitute an Event of renewals for Default under this Sublease. In the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain event that the Letter of Credit has an expiration date that is prior to January 14, 2003, and does not provide for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Dateautomatic renewals through and including January 14, the Vendor may2003, in lieu then, no later than thirty (30) days prior to each scheduled expiration date of the Letter of Credit, secure its obligations under Section 9.2(c)Sublessee shall cause the Letter of Credit to be either extended for a period of at least one (1) year or replaced to the reasonable satisfaction of Sublessor, such that the Letter of Credit shall remain in full force and effect and drawable by providing environmental insurance wherein Sublessor through and including January 14 2003. If Sublessor has not received any such extension or replacement on or before the insurer date that is thirty (who 30) days prior to the then scheduled expiration date of the Letter of Credit, Sublessor shall be satisfactory entitled to draw down on the Letter of Credit in full, and the funds so drawn by Sublessor shall be added to the PurchaserSecurity Deposit then held by Sublessor under this Sublease and shall thereafter be held by Sublessor as part of such Security Deposit, acting reasonablysubject to and in accordance with the terms of this Section 6. Notwithstanding anything contained in this Sublease to the contrary, if Sublessor draws on the Letter of Credit, then Sublessee shall have the right, upon ten (10) agrees days' prior written notice to unconditionally indemnifySublessor, for the remainder to obtain a refund from Sublessor of any unapplied proceeds of the LC Claim PeriodLetter of Credit which Sublessor has drawn upon, PECany such refund being conditioned upon Sublessee simultaneously delivering to Sublessor a new replacement Letter of Credit in the amount then required, and otherwise meeting the Purchaser and requirements contained in this Section. In the Purchaser's Affiliates for event Sublessee has not provided Sublessor with written notice of its election to obtain a refund of any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as unapplied proceeds of the Signing Date or at any time thereafter has in respect Letter of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
Credit within ten (b10) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies days of the Purchaser and draw of such funds by Sublessor, Sublessee shall have waived its Additional Indemnities otherwise available in this Article 9right to obtain a refund of such funds.
Appears in 1 contract
Letter of Credit. (a) To secure the Guaranteed Amount, the Guarantors shall deliver or cause to be delivered to Best a standby letter of credit in the initial face amount of Ten Million Dollars ($10,000,000) substantially in the form annexed hereto as Exhibit B (such letter of credit, together with any replacements therefor, the "Letter of Credit").
(b) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming shall provide that it shall expire on the Purchaser as beneficiary for an amount equal earliest to occur of (i) the drawing by Best of all amounts available thereunder, (ii) the termination of this Guaranty pursuant to Sections 1(b)(A)(ii) and/or 1(c) hereof, which termination shall be certified to the LC Amountissuer of the Letter of Credit by Best (Best hereby agreeing to cause such certification to be delivered to such issuer to the extent Best reasonably determines that the Guaranty terminates pursuant to either of such sections) and (iii) the date which is one year from the date of its issuance (the "Expiration Date"). Such If not later than thirty (30) days prior to the initial or any subsequent Expiration Date, Best shall not have received (A) notice from the issuer thereof that the Letter of Credit has been renewed or (B) evidence that the existing Letter of Credit shall be delivered to the Purchaser concurrently with the execution of this Agreement, and the Vendor shall maintain the replaced by a Letter of Credit (in effect, including by way of renewals for the entire LC Claim Period, from time same amount as the amount currently available to time prior to its expiry date. The Purchaser will be entitled to present such drawn under the existing Letter of Credit for payment if it provides Credit) from National City Bank of Columbus, Xxxxx Fargo, Chase Manhattan Bank or another issuer reasonably satisfactory to Best, then Best shall be permitted to immediately draw the Vendor with a Notice of Claim for Indemnified Losses pursuant full amount available to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to be drawn under the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, thathowever, that Best shall deposit such amount in an escrow account (the "Escrow Account") established pursuant to an escrow agreement (the "Escrow Agreement") the terms of which shall be reasonably agreed upon by the Guarantors and Best (such terms to include, without limitation, the Vendor shall maintain provision for the remitting to Guarantors of any escrowed amounts determined under this Guaranty to exceed the Guaranteed Amount) pending (x) the entry by the Bankruptcy Court of final orders with respect to all timely filed allowed Rejection Claims, and (y) if and only if the amount of the Allowed Rejection Claims exceeds the Floor, the establishment of the Final Dividend Rate.
(c) Subject to the terms and conditions of this Guaranty including, without limitation, Section 1(b) hereof, Best may draw upon the Letter of Credit for the full LC Guaranteed Amount (or such lesser amount as shall be available for draw thereunder) after a written demand for payment has been made upon Guarantors in effect for accordance with the entire LC Claim Period notwithstanding that terms of Section 1(b) above and such payment has not be made within five (5) business days of the Purchaser may have presented a receipt of demand therefor.
(d) The Letter of Credit for payment earlier shall also provide that (i) in no event may Best draw thereunder an amount in excess of the LC Claim Period. At any time after Guaranteed Amount and (ii) upon a conclusive but reasonable determination by Best and the Closing DateGuarantors in accordance with Section 1(b)(A)(ii) hereof that the Guaranteed Amount shall in all events be less than $10,000,000, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who Credit shall be satisfactory reduced such that the face amount thereof shall not be greater than the Guaranteed Amount as so determined by Best and the Guarantors, less any draws made thereunder, upon receipt by the issuer thereof of a certificate from Guarantors and Best (a "Reduction Certificate") (Best hereby agreeing to execute and deliver such Reduction Certificate together with the Guarantors in accordance with this clause, to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") extent Best reasonably determines that the Purchaser as Letter of Credit should be so reduced) certifying the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurernew Guaranteed Amount.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. Within ten (a10) The Vendor days of the date hereof, Sublessee shall secure its obligations under Section 9.2(cprovide Sublessor with an irrevocable standby letter of credit in the amount of $102,191.25 (the "Letter of Credit"), insofar as it relates in form and substance reasonably acceptable to a Purchase Agreement Default in respect of Section 5.1(ii)Sublessor, and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC Amount. Such Letter of Credit which shall not expire until or shall be delivered renewed beyond the later to occur of (i) sixty (60) days after the Purchaser concurrently with the execution expiration or sooner termination of this AgreementSublease or (ii) sixty (60) days after Sublessee shall have fully vacated the Sublet Premises, which Sublessor will hold as security for the faithful performance by Sublessee of all its covenants and agreements under this Sublease. Sublessor shall have the Vendor shall maintain right, but not the obligation, to apply the Letter of Credit against any Rents or other charges in effectarrears, including or to repair damage to the Sublet Premises caused by way Sublessee or Sublessee's employees, contractors, invitees or licensees, or on account of renewals for any other damages suffered by Sublessor as a result of Sublessee's default hereunder or to satisfy Sublessee's indemnification obligations hereunder. Sublessor's right to possession of the entire LC Claim PeriodSublet Premises or other remedies available on account of Sublessee's default or any other reason shall not be affected by the fact that Sublessor holds such Letter of Credit. If Sublessee shall fail to deliver the Letter of Credit as aforesaid, Sublessor shall have the right to terminate this Sublease immediately. Sublessee may, from time to time prior to its expiry date. The Purchaser will be entitled to present such time, replace any existing Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal new Letter of Credit is not provided by if the Vendor to the Purchaser new Letter of Credit (a) becomes effective at least 30 thirty (30) days prior to before the expiry termination or expiration of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for that it replaces; (b) is in the full LC Amount in effect for required amount; (c) is on the entire LC Claim Period notwithstanding that same terms and conditions as the Purchaser may have presented a Letter of Credit for payment earlier in it replaces; (d) is issued by a bank having the LC Claim Period. At any time after same or better credit rating as the Closing Date, the Vendor may, in lieu of bank that issued the Letter of CreditCredit it replaces and that is otherwise reasonably acceptable to Sublessor); (e) otherwise complies with the requirements of this Section 19; and (f) provided that Sublessee first obtains the prior written consent of Sublessor, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall which consent may be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaserwithheld in Sublessor's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurersole discretion.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. (ai) The Vendor On or prior to the Business Day immediately following the Closing Date, the Company shall secure its obligations under Section 9.2(cobtain an irrevocable letter of credit (the “Letter of Credit”), insofar as it relates to a Purchase Agreement Default in respect the amount of Section 5.1(ii), and Section 9.2(d) by providing $7,000,000 (the Purchaser with a “Letter of Credit naming Amount”) issued in favor of Portside Growth and Opportunity Fund, in its capacity as letter of credit agent for the Purchaser holders of the Notes (the “LC Agent”) by a bank acceptable to such LC Agent (the “Letter of Credit Bank”) and in form and substance acceptable to such LC Agent. The Letter of Credit, including any renewals, extensions or replacements referred to below, shall expire not earlier than 91 days after the Stated Maturity (as beneficiary for defined in the Indenture) of the Notes (the “LC Expiration Date”). Upon (i) the occurrence and during the continuance of an amount equal to Event of Default (as defined in the Indenture) under any of the Notes or (ii) the Stated Maturity of the Notes, the LC AmountAgent shall be entitled to draw under the Letter of Credit, including any renewals, extensions or replacements referred to below, for the full Letter of Credit Amount then available thereunder, it being understood that the LC Agent shall act for the benefit of the Buyers on a pro rata basis based on the principal amount of the Notes initially issued to each of the Buyers and hold such amount as collateral security for the obligations under the Notes for the benefit of the Buyers. Such The Company shall obtain such renewals, extensions or replacements of the Letter of Credit as necessary to ensure that the Letter of Credit shall be delivered not expire prior to the Purchaser concurrently LC Expiration Date (unless the Letter of Credit shall have been reduced to zero in accordance with the execution terms contained in this Section 4(n) prior to such date). If, at any time, the Company cannot obtain a renewal, extension or replacement of this Agreementthe Letter of Credit such that the Letter of Credit will expire prior to the LC Expiration Date (a “Withdrawal Event”), the Company and the Letter of Credit Bank shall each give the LC Agent written notice of the occurrence of a Withdrawal Event at least forty-five (45) days prior to the then current expiration date of the Letter of Credit. Following a Withdrawal Event, the LC Agent shall be entitled to draw down the Letter of Credit Amount in its entirety (whether or not an Event of Default shall have occurred or be continuing under any of the Notes) and hold such amount as collateral security for the obligations under the Notes for the benefit of the Buyers. With respect to each Buyer that has delivered an Event of Default Redemption Notice pursuant to the Indenture (with a copy to the LC Agent), no later than the later of (i) the Event of Default Redemption Date with respect to such holder of Notes and (ii) the second (2nd) Business Day following the date that the LC Agent received all or any portion of the Letter of Credit Amount from the Letter of Credit Bank, the LC Agent shall distribute to such Buyer an amount in cash equal to the lesser of (i) such Buyer’s Event of Default Redemption Price and (ii) an amount calculated by multiplying the Letter of Credit Amount by the quotient determined by dividing (A) the principal amount of Notes issued to such Buyer on the Closing Date by (B) the aggregate principal amount of all Notes issued to all Buyers on the Closing Date (the “Letter of Credit Allocation”); provided, that in no event shall the LC Agent be required to deliver to the Buyers more than the total amount drawn under the Letter of Credit. In the event that any Buyer shall sell or otherwise transfer any of such Buyer’s Notes, the transferee shall be allocated a pro rata portion of such Buyer’s Letter of Credit Allocation, and the Vendor rights of the applicable transferor contained in the prior sentence shall maintain apply to the applicable transferee with respect to the portion of the Letter of Credit Allocation allocated to such transferee. In the event that any Buyer of Notes shall convert all or a portion of such Buyer’s Notes, which leaves such Buyer with an aggregate principal amount of Notes that is less than such Buyer’s Letter of Credit Allocation, then such Buyer’s Letter of Credit Allocation shall be reduced to the outstanding principal of Notes held by such Buyer and the difference between such Buyer’s Letter of Credit Allocation and the outstanding principal amount of Notes held by such Buyer shall be allocated to the respective Letter of Credit Allocations of the remaining Buyers of Notes on a pro rata basis in proportion to the outstanding principal amount of Notes then held by each such Buyer.
(ii) If at any time during any thirty (30) consecutive Trading Day period (the “Measuring Period”) after the Closing Date (A) the Equity Conditions (as defined in the Indenture) have been satisfied and (B) the Closing Sale Price (as defined in the Indenture) of the Common Stock equals or exceeds 120% of the initial Conversion Price (as defined in the Indenture) for twenty (20) Trading Days during the Measuring Period, the Company shall promptly deliver a notice to the LC Agent (the “LC Termination Notice”), certifying as to the occurrence of such events. Within 10 days of the receipt of an LC Termination Notice, the LC Agent shall issue a written instruction to the Letter of Credit Bank to request the termination of the Letter of Credit and the release and return of the Letter of Credit to the Company (the date of such termination, the “LC Termination Date”).
(iii) Portside Growth and Opportunity Fund is hereby appointed as the LC Agent for the Buyers hereunder, and each Buyer hereby authorizes the LC Agent (and its officers, directors, employees and agents) to take any and all such actions on behalf of the Buyers with respect to the Letter of Credit in effect, including by way accordance with the terms of renewals for the entire LC Claim Period, from time to time prior to its expiry datethis Agreement. The Purchaser will be entitled to present such Letter LC Agent shall not have, by reason hereof or any of Credit for payment if it provides the Vendor with other Transaction Documents, a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default fiduciary relationship in respect of any Buyer. To the extent that the LC Agent, in such capacity, receives any funds pursuant to the terms of this Section 5.1(ii4(n), or Section 9.2(d) but only except as contemplated above, if the LC Agent is to distribute any of such funds to any Buyer (including Portside Growth and Opportunity Fund, in its capacity as a Buyer), it shall distribute such funds to all of the Buyers on a pro rata basis based on the principal amount of the Notes held by each of the Buyers. Neither the LC Agent nor any of its officers, directors, employees and agents shall have any liability to the extent Buyer for any action taken or omitted to be taken in connection hereof, and any Buyer agrees to defend, protect, indemnify and hold harmless the LC Agent and all of its officers, directors, employees and agents (collectively, the “LC Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Indemnified Losses LC Indemnitee, whether direct, indirect or if consequential, arising from or in connection with the performance by such LC Indemnitee of the duties and obligations of the LC Agent pursuant hereto. In the event that Portside Growth and Opportunity Fund no longer holds any Notes, a renewal Letter majority of Credit is not provided by the Vendor holders of the Notes shall appoint a new LC Agent. At any time, upon two (2) Business Days advance notice to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; providedCompany, that, the Vendor shall maintain the Letter of Credit for Bank and the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in Buyers, the LC Claim PeriodAgent may resign as LC Agent, and a majority of the holders of the Notes shall appoint a new LC Agent. At After any time after the Closing DateLC Agent’s resignation hereunder, the Vendor mayprovisions of this Section 4(n) shall inure to its benefit. If a successor LC Agent shall not have been so appointed within said two (2) Business Day period, in lieu the retiring LC Agent shall then appoint a successor LC Agent who shall serve until such time, if any, as the holders of a majority of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the Notes appoint a successor LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser Agent as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerprovided above.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. (a) This Secured Debenture is the debenture referred to in an irrevocable letter of credit issued by Wachovia Bank, National Association (the "Bank") in favor of the Holder in an original amount of the aggregate original principal amount of the Secured Debentures, a copy of which is annexed hereto as Annex A (the "Letter of Credit"). The Vendor Company hereby acknowledges that the Holder and any subsequent Holder shall secure its obligations under Section 9.2(c), insofar as it relates be entitled to a Purchase Agreement Default in respect the benefits of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming and covenants and agrees that it will not impair the Purchaser as beneficiary for an amount equal to Holder's rights under the LC Amount. Such Letter of Credit shall be delivered and (except to the Purchaser concurrently with the execution of this Agreement, and the Vendor extent provided in Section 2(b)) shall maintain the Letter of Credit in full force and effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever The Holder agrees that the rights and remedies face amount of the Purchaser Letter of Credit shall be reduced from time to time pursuant to the terms set forth below:
(i) subsequent to each Conversion Date, the face amount of the Letter of Credit shall be reduced on the date on which the Holder receives the Underlying Shares it is entitled to receive subsequent to such Conversion Date pursuant to Section 6(e), by an amount equal to the principal amount of Secured Debentures converted on such Conversion Date less any interest payment accreted to principal up to such date;
(ii) the face amount of the Letter of Credit shall be reduced by an amount equal to the Holder Prepayment Price or the Company Prepayment Price paid by the Company pursuant to the delivery of a Holder Prepayment Notice or Company Prepayment Notice, as applicable, as set forth in Section 8, upon receipt by the Holder of such payment;
(iii) the face amount of the Letter of Credit shall be reduced by an amount equal to the principal amount of Secured Debentures being exchanged pursuant to Section 7 into Exchange Debentures, upon receipt by the Holder of such Exchange Debenture; and
(iv) on the Final Release Date and its Additional Indemnities otherwise available provided that: (A) the Equity Conditions are satisfied on such date with respect to the Underlying Shares issuable upon conversion in full of the then outstanding principal amount of Secured Debentures and (B) the Underlying Shares issuable upon conversion in full of the then outstanding principal amount of Secured Debentures would not violate Section 6(d)(i), the Letter of Credit shall be canceled and shall cease to secure any Secured Debentures which may be outstanding as of such Final Release Date.
(c) The Holder shall, within five Trading Days of the occurrence of any of the events set forth in Section 2(b), provide the Bank with Exhibit C attached to the Letter of Credit indicating the occurrence of such event.
(d) Upon the failure of the Company to timely pay to the Holder any amount which is then due and payable to the Holder under this Article 9Secured Debenture, whether pursuant to Section 8, Section 9 or any other applicable Section herein, the Holder shall be entitled to draw on the Letter of Credit to the extent of any such payment or payments so due to the Holder is not timely paid by the Company.
(e) Any amounts received by the Holder pursuant to a draw on the Letter of Credit shall be applied against all unsatisfied obligations of the Company under this Secured Debenture.
Appears in 1 contract
Letter of Credit. the Lessee shall be entitled, instead of paying the Security Deposit in cash in accordance with sub-clause (a) The Vendor above, to provide the Lessor with the Letter of Credit. In the event that the Lessee elects to provide the Letter of Credit, the following provisions shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(dapply:
(i) by providing Lessee shall cause the Purchaser with a Letter of Credit naming to be renewed or replaced by the Purchaser issuing bank not later than 10 Business Days before the expiration of such Letter of Credit, and shall cause the Letter of Credit to remain in effect, as beneficiary renewed, until 90 days after the scheduled Expiry Date.
(ii) If an Event of Default occurs and for as long as it continues, the Lessor may (but shall not be obliged to) call on the Letter of Credit and use or apply the proceeds in or towards satisfaction of any sums due and payable to the Lessor under this Agreement or to compensate the Lessor for any sums which it may, in its discretion, advance or expend as a result of any such Event of Default. Notwithstanding any such use or application by the Lessor, the Lessee shall remain in default under this Agreement until the full amount owed by the Lessee, including interest accrued thereon pursuant to Clause 5.9, shall have been paid to the Lessor. If the Lessor so uses or applies all or any portion of the amount available under the Letter of Credit, the Lessee shall immediately, on demand of the Lessor, procure the issue of a new Letter of Credit acceptable to the Lessor for an amount equal to the LC Amount. Such amount so used or applied, or shall pay to the Lessor an amount in cash equal to the amount so used or applied to be held pursuant to Clause 5.1(a).
(iii) The Letter of Credit shall be delivered returned to the Purchaser concurrently with Lessee within five Business Days of:
(1) redelivery of the execution of Aircraft to the Lessor in the condition required by Clause 12 of, and Schedule 3 to, this Agreement; or
(2) receipt by the Lessor of the Agreed Value following a Total Loss and all other amounts due under Clause 11.1(b); or in either case, and at such later time as the Vendor Lessor is satisfied that the Lessee has irrevocably paid to the Lessor all amounts which are at that time outstanding under this Agreement; provided always that the Lessor shall maintain not be obliged to return the Letter of Credit in effectif, including by way of renewals for at the entire LC Claim Periodrelevant time, from time to time prior to its expiry date. The Purchaser will a Default shall have occurred and be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurercontinuing.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Letter of Credit. (a) The Vendor shall secure its obligations under On or prior to the issuance, sale and delivery of the Bonds to the purchaser or purchasers thereof, pursuant to Section 9.2(c)2.6 of the Indenture, insofar as it relates the Company hereby covenants and agrees to a Purchase Agreement Default in respect of Section 5.1(ii)obtain and deliver to the Trustee the initial, and Section 9.2(d) by providing the Purchaser with a irrevocable, transferable Letter of Credit naming to be issued by the Purchaser Bank in favor of the Trustee for the benefit of the owners from time to time of the Bonds, in substantially the same form as beneficiary Exhibit A attached to the Letter of Credit Agreement. The initial Letter of Credit shall be dated the date of issuance and delivery of the Bonds; shall expire on June 15, 2009, unless otherwise extended in accordance with the terms and provisions of subsection (b) below and the Letter of Credit Agreement; shall be in the amount of (i) the aggregate principal amount of the Bonds (A) to enable the Trustee to pay the principal of the Bonds at maturity, upon redemption prior to maturity or acceleration, and (B) to enable the Trustee to pay the portion of the purchase price of Bonds tendered or deemed to be tendered to the Trustee for purchase, equal to the aggregate principal amount of such Bonds, plus (ii) an amount equal to the LC Amountinterest to accrue on the Bonds for thirty-five (35) days at a maximum rate of twelve percent (12%) per annum (A) to enable the Trustee to pay interest accrued on the Bonds on the dates and in the manner set forth in the Indenture, and (B) to enable the Trustee to pay the portion of the purchase price of Bonds tendered or deemed to be tendered to the Trustee for purchase, equal to the accrued interest on such Bonds.
(b) Except as hereinafter provided, at any time prior to the fifteenth Business Day prior to the interest payment date on the Bonds immediately preceding the Stated Termination Date of the Letter of Credit, the Company may, at its option but is not required to, provide for the extension of the term of the Letter of Credit or to deliver to the Trustee a substitute Letter of Credit as hereinafter provided. Such If the Company chooses to extend the term of the Letter of Credit, then such extension shall be to the fifteenth day of any calendar month at least one (1) year after the Stated Termination Date of the existing Letter of Credit, and (unless the Letter of Credit by its terms provides for an extension of its term automatically unless the Trustee is notified to the contrary) the Company shall furnish proof of such extension, in the form of an amendment to the Letter of Credit evidencing such extension, to the Trustee no later than the fifteenth Business Day prior to the interest payment date on the Bonds immediately preceding the Stated Termination Date of the Letter of Credit. In the event that the Letter of Credit by its terms provides for an extension of its term automatically unless the Trustee is notified to the contrary, such extensions shall be consistent with the terms and provisions set forth above, but it shall not be necessary to furnish such proof or amendment. If the Company chooses to provide a substitute Letter of Credit, such substitute Letter of Credit shall be an irrevocable letter of credit in substantially the same form and tenor as the initial Letter of Credit, in an amount equal to the outstanding principal amount of the Bonds plus an amount equal to the maximum interest to accrue on the Bonds then outstanding for thirty-five (35) days at a maximum rate of twelve percent (12%) per annum, with administrative provisions reasonably satisfactory to the Trustee, but provided to expire on the fifteenth day of any calendar month at least one (1) year after the Stated Termination Date of the existing Letter of Credit, such substitute Letter of Credit to be issued by a commercial bank and delivered to the Purchaser concurrently with Trustee on an interest payment date on the execution of this Agreement, and Bonds immediately preceding the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry Stated Termination Date of the then outstanding Letter of Credit; provided, thatthat simultaneously with the delivery of any such substitute Letter of Credit to the Trustee, the Vendor Company shall maintain also have provided the Trustee with written evidence from the Bank which issued the existing Letter of Credit that the Company shall have paid all of its obligations under the related Letter of Credit Agreement to such Bank (other than any obligations with respect to reimbursement for drawings under the Letter of Credit to purchase Bonds tendered or deemed to be tendered to the Trustee for purchase pursuant to Section 4.1 or Section 4.2 of the Indenture, which obligations are not yet due and owing under the Letter of Credit Agreement), and shall have paid all other amounts due and owing under the Letter of Credit Agreement pursuant to which the existing Letter of Credit was issued (except as aforesaid). Simultaneously with the delivery of such substitute Letter of Credit to the Trustee, the Company shall also provide the Trustee with an opinion of Bond Counsel that such substitute Letter of Credit is authorized under this Agreement, complies with the terms hereof, and does not have an adverse effect on the exclusion of the interest on the Bonds from gross income of the owners thereof for federal income tax purposes. Upon delivery of a substitute Letter of Credit and the foregoing evidence and opinion, the Trustee is authorized and directed to surrender the existing Letter of Credit and to approve the cancellation of the existing Letter of Credit. The Company hereby covenants and agrees to give the Issuer, the Trustee, the Bank and the Remarketing Agent written notice of its intention to deliver any such substitute Letter of Credit at least fifteen (15) Business Days prior to the first Business Day of the month in which the Company expects to deliver such substitute Letter of Credit.
(c) Subject to the provisions of Section 5.9(g) of this Agreement, if the Company elects to exercise its option to cause the interest rate on the Bonds to be converted to the Fixed Rate in accordance with the provisions of Section 4.2(h) hereof, the Company may, at its option but is not required to, provide for the delivery to the Trustee of a substitute Letter of Credit with respect to the Bonds. Such substitute Letter of Credit shall consist of an irrevocable letter of credit in the amount of (i) the aggregate principal amount of the Bonds then outstanding to enable the Trustee to pay the principal of such Bonds at maturity, upon redemption prior to maturity or acceleration, plus (ii) an amount equal to three percent (3%) of the aggregate principal amount of the Bonds then outstanding to pay premium, plus (iii) an amount equal to the interest to accrue on such Bonds then outstanding for 215 days to enable the Trustee to pay interest accrued on such Bonds as it comes due, set to expire or terminate one hundred twenty-four (124) days after the final maturity of such Bonds, and having administrative provisions satisfactory to the Trustee. If the Company has elected to deliver such a substitute Letter of Credit to the Trustee, the Company shall deliver to the Trustee at least forty-five (45) days prior to the Proposed Conversion Date an irrevocable commitment of a Bank to issue such substitute Letter of Credit, and shall deliver such substitute Letter of Credit to the Trustee on or before the Conversion Date. Simultaneously with the delivery of such substitute Letter of Credit to the Trustee, the Company shall also provide the Trustee with an opinion of Bond Counsel to the effect that such substitute Letter of Credit is authorized under this Agreement, complies with the terms hereof and does not have an adverse effect on the exclusion of the interest on the Bonds from gross income of the owners thereof for federal income tax purposes.
(d) At any time while a Letter of Credit is in effect, the Company from time to time may, at its option, but is not required to, deliver to the Trustee a substitute Letter of Credit in substitution for the existing Letter of Credit. The substitute Letter of Credit shall be an irrevocable, transferable letter of credit in substantially the same form and tenor as the existing Letter of Credit with administrative provisions satisfactory to the Trustee, provided to expire on the same date as the existing Letter of Credit or on the fifteenth day of any calendar month at least one (1) year after the Stated Termination Date of the existing Letter of Credit, such substitute Letter of Credit to be issued by a commercial bank and delivered to the Trustee on an interest payment date on the Bonds; provided, that simultaneously with the delivery of the substitute Letter of Credit to the Trustee, the Company shall furnish to the Trustee written evidence from each Rating Agency by which the Bonds are then rated, if any, to the effect that such Rating Agency has reviewed the proposed substitute Letter of Credit and that the substitution of the proposed substitute Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a existing Letter of Credit for payment earlier will not, by itself, result in the LC Claim Period. At reduction or withdrawal of its rating assigned to the Bonds from that which then prevails; provided further, that simultaneously with the delivery of any time after such substitute Letter of Credit to the Closing DateTrustee, the Vendor mayCompany shall also have provided the Trustee with written evidence from the Bank which issued the existing Letter of Credit that the Company shall have paid all of its obligations under the Letter of Credit Agreement to such Bank (other than any obligations with respect to reimbursement for drawings under the Letter of Credit to purchase Bonds tendered or deemed to be tendered to the Trustee for purchase pursuant to Section 4.1 or Section 4.2 of the Indenture, which obligations are not yet due and owing under the Letter of Credit Agreement), and shall have paid all other amounts due and owing under the Letter of Credit Agreement pursuant to which the existing Letter of Credit was issued (except as aforesaid). Simultaneously with the delivery of such substitute Letter of Credit to the Trustee, the Company shall also provide the Trustee with an opinion of Bond Counsel that such substitute Letter of Credit is authorized under this Agreement, complies with the terms hereof, and does not have an adverse effect on the exclusion of the interest on the Bonds from gross income of the owners thereof for federal income tax purposes. If the Company shall fail to furnish to the Trustee such written evidence from each such Rating Agency, if any, and such Bank and such opinion of Bond Counsel, the Trustee shall not be deemed to have received the substitute Letter of Credit, and shall not surrender the existing Letter of Credit. Upon delivery of a substitute Letter of Credit and the foregoing evidence and opinion, the Trustee is authorized and directed to surrender the existing Letter of Credit. The Company hereby covenants and agrees to give the Issuer, the Trustee, the Bank and the Remarketing Agent written notice of its intention to deliver any such substitute Letter of Credit at least fifteen (15) Business Days prior to the first Business Day of the month in lieu which the Company expects to deliver such substitute Letter of Credit.
(e) The Company may at its option, but is not required to, provide for the delivery to the Trustee of an Alternate Credit Facility to supplement the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein to replace the insurer (who Letter of Credit or to provide credit enhancement if the Letter of Credit is not then in effect. Any such Alternate Credit Facility shall be payable to the Trustee for the benefit of the owners of the Bonds and shall have administrative provisions satisfactory to the PurchaserTrustee. Simultaneously with the delivery of such an Alternate Credit Facility to the Trustee, acting reasonably) the Company shall provide the Trustee with an opinion of Bond Counsel to the effect that the delivery of such Alternate Credit Facility is authorized under this Agreement, complies with the terms hereof and does not have an adverse effect on the exclusion of the interest on the Bonds from gross income of the owners thereof for federal income tax purposes. The Company hereby covenants and agrees to unconditionally indemnifygive the Issuer, for the remainder Trustee, the Bank and the Remarketing Agent written notice of its intention to deliver any such Alternate Credit Facility at least fifteen (15) Business Days prior to the first Business Day of the LC Claim Period, PEC, month in which the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory Company expects to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with deliver such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerAlternate Credit Facility.
(bf) Section 9.8(aIn the event that the Letter of Credit is set to expire and the Company does not intend to deliver a substitute Letter of Credit to the Trustee, the Company shall, on or before the fifteenth Business Day prior to the interest payment date immediately preceding the Stated Termination Date, give written notice to the Issuer, the Trustee, the Remarketing Agent and the Bank that the Company does not intend to deliver such a substitute Letter of Credit to the Trustee prior to the Stated Termination Date.
(g) shall not impairNotwithstanding any other provision of this Agreement or the Indenture to the contrary, effect or limit in any way whatsoever the rights and remedies upon a Conversion of the Purchaser and its Additional Indemnities otherwise available interest rate on the Bonds to a Fixed Rate, no Letter of Credit or Alternate Credit Facility shall be in this Article 9effect after the Conversion of such interest rate to the Fixed Rate unless the Company delivers to the Trustee an opinion of Bond Counsel to the effect that such maintenance of such Letter of Credit or Alternate Credit Facility does not have an adverse effect on the exclusion of the interest on the Bonds from gross income of the owners thereof for federal income tax purposes.
Appears in 1 contract
Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal Subject to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution of this Agreementterms and conditions hereof, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, Agent shall: (i) from time to time prior issue or cause the L/C Issuer to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter issue Documentary Letters of Credit for the full LC Amount purpose of financing the importation of Eligible Inventory and Stand-by Letters of Credit to secure obligations of Borrower approved by Agent, in effect each case, issued for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter account of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessorsBorrower; provided, however, that Agent will not be required to issue or cause to be issued any Letters of Credit to the Vendor extent that the issuance of such Letters of Credit would then cause the sum of: (A) the outstanding Revolving Loans plus (B) the Letter of Credit Obligations (with the requested Letter of Credit being deemed to be outstanding for purposes of this calculation) to exceed the lesser of: (x) the Revolving Loan Commitment or (y) the Borrowing Base (plus any overadvances permitted to be outstanding at such time in the sole discretion of Agent, pursuant to paragraph 23 hereof) in effect prior to the issuance of the requested Letter of Credit. The maximum amount of outstanding Documentary Letters of Credit shall not exceed Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate at any time. The maximum amount of outstanding Stand-by Letters of Credit shall not exceed Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate at any time. Each disbursement or payment by the L/C Issuer or Agent related to Letters of Credit shall be solely liable for all premiums deemed to be a Revolving Loan and related costs associated with such insuranceshall bear interest as a Revolving Loan. The Purchaser Letters of Credit that have not been drawn upon shall grant reasonable access to the non-PNG information to any such insurernot bear interest.
(b) Section 9.8(aBorrower may from time to time upon notice not later than 12:00 Noon, Chicago Time, at least three (3) Business Days in advance, request Agent to assist Borrower in establishing or opening a Letter of Credit by delivering to Agent at the Payment Office, the L/C Issuer’s standard form of letter of credit application (the “Letter of Credit Application”) completed to the satisfaction of the L/C Issuer; and, such other certificates, documents and other papers and information as Agent may reasonably request.
(c) Each Letter of Credit shall, among other things: (i) provide for the payment of sight drafts when presented for honor thereunder in accordance with the terms thereof and when accompanied by the documents described therein and (ii) have an expiry date not later than twelve (12) months after such Letter of Credit’s date of issuance and in no event later than the last day of the Term. Each Letter of Credit Application and each Letter of Credit shall be subject to: (x) the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500, and any amendments or revision thereof in connection with any Documentary Letter of Credit and (y) ISP 98 in connection with any Standby Letter of Credit, or with respect to any Letter of Credit Application or Letter of Credit, any other rules, regulations and customs prevailing at the place where any such Letter of Credit Application is made or where any such Letter of Credit is available or the drafts are drawn or negotiated and, to the extent not impairinconsistent therewith, effect the laws of the State of New York.
(d) In connection with the issuance of any Letter of Credit, Borrower shall indemnify, save and hold Agent, each Lender and each L/C Issuer harmless from any loss, cost, expense or limit liability, including, without limitation, payments made by Agent, any Lender or any L/C Issuer, and expenses and reasonable attorneys’ fees incurred by Agent, any Lender or any L/C Issuer arising out of, or in connection with, any Letter of Credit to be issued for the account of Borrower. Borrower shall be bound by the L/C Issuer’s regulations and good faith interpretations of any Letter of Credit issued or created for Borrower’s account, although this interpretation may be different from Borrower’s own; and, neither Agent nor any Lender, any L/C Issuer, nor any of their respective correspondents shall be liable for any error, negligence, or mistakes, whether of omission or commission, in following Borrower’s instructions or those contained in any way whatsoever Letter of Credit or of any modifications, amendments or supplements thereto or in issuing or paying any Letter of Credit, except for Agent’s or any Lender’s or such correspondents’ gross (not mere) negligence or willful misconduct.
(e) Borrower shall authorize and direct the rights L/C Issuer to name Borrower as the “Account Party” therein and remedies to deliver to Agent all instruments, documents, and other writings and property received by the L/C Issuer pursuant to the Letter of Credit and to accept and rely upon Agent’s instructions and agreements with respect to all matters arising in connection with the Letter of Credit and the application therefor.
(f) In connection with all Letters of Credit issued or caused to be issued by Agent under this Agreement, Borrower hereby appoints Agent, or its designee, as its attorney, with full power and authority: (i) to sign and/or endorse Borrower’s name upon any warehouse or other receipts, letter of credit applications and acceptances; (ii) to sign Borrower’s name on bills of lading; (iii) to clear Inventory through the United States of America Customs Department (“Customs”) in the name of Borrower or Agent or Agent’s designee, and to sign and deliver to Customs officials powers of attorney in the name of Borrower for such purpose; (iv) to complete in the name of Agent, or Agent’s designee, any order, sale or transaction, obtain the necessary documents in connection therewith, and collect the proceeds thereof; (v) to clear and resolve any questions of non-compliance of documents; (vi) to give any instructions as to acceptance or rejection of any documents or goods; (vii) to execute any and all applications for steamship or airways guarantees, indemnities or delivery orders; (viii) to grant any extensions of the Purchaser maturity of, time of payment for, or time of presentation of, any drafts, acceptances, or documents; and (ix) to agree, subject to the prior written approval of Borrower, to any amendments, renewals, extensions, modifications, changes or cancellation of any of the terms or conditions of any of the applications, Letters of Credit, drafts or acceptances; all in Agent’s sole name, and the L/C Issuer shall be entitled to comply with and honor any and all such documents or instruments executed by or received solely from Agent; all without notice to or consent from Borrower. Neither Agent nor its Additional Indemnities otherwise available attorneys will be liable for any acts or omissions nor for any error of judgment or mistakes of fact or law, except for Agent’s or its attorney’s gross (not mere) negligence or willful misconduct. This power, being coupled with an interest, is irrevocable as long as any Letters of Credit remain outstanding.
(g) Neither Agent nor any Lender shall be responsible for: the existence, character, quality, quantity, condition, packing, value or delivery of the goods purporting to be represented by any documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of the goods from that expressed in the documents; the validity, sufficiency or genuineness of any documents or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent, or forged (assuming the absence of any fraud or forgery on the part of Agent, Lenders or their respective agents); the time, place, manner or order in which shipment is made; partial or incomplete shipment, or failure or omission to ship any or all of the goods referred to in the Letters of Credit or documents; any deviation from instructions, delay, default, or fraud by the shipper and/or any one else in connection with the Collateral or the shipping thereof; or any breach of contract between the shipper or vendors and Borrower.
(h) Any necessary import, export or other licenses or certificates for the import or handling of the Collateral will have been promptly procured; all foreign and domestic governmental laws and regulations in regard to the shipment and importation of the Collateral or the financing thereof will have been promptly and fully complied with; any certificates in that regard that Agent may at any time request will be promptly furnished. In this Article 9connection, Borrower warrants and represents that all shipments made under any such Letters of Credit are in accordance with the governmental laws and regulations of the countries in which the shipments originate and terminate, and are not prohibited by any such law and regulations. Borrower assumes all risk, liability and responsibility for, and agrees to pay and discharge all present and future local, state, federal or foreign taxes, duties, or levies. Any embargo, restriction, laws, customs or regulations of any country, state, city or other political subdivision where the Collateral is or may be located or wherein payments are to be made or wherein drafts may be drawn, negotiated, accepted, or paid shall be solely at Borrower’s risk, liability and responsibility.
(i) Each Lender shall, in proportion to such Lender’s Commitment Percentage of the aggregate amount of all disbursements made with respect to the Letters of Credit, be deemed to have irrevocably purchased an undivided participation in each Revolving Loan made as a consequence of such disbursement. In the event that at the time a disbursement is made the unpaid balance of Revolving Loans exceeds or would exceed, with the making of such disbursement, the lesser of the Revolving Loan Commitment or the Borrowing Base (plus any overadvances permitted to be outstanding at such time in the sole discretion of Agent pursuant to paragraph 23 hereof), and such disbursement is not reimbursed by Borrower within two (2) Business Days, Agent shall promptly notify each Lender and upon Agent’s demand each Lender shall pay to Agent such Lender’s proportionate share of such unreimbursed disbursement together with such Lender’s proportionate share of Agent’s unreimbursed costs and expenses relating to such unreimbursed disbursement. Upon receipt by Agent of a repayment from Borrower of any amount disbursed by Agent for which Agent had already been reimbursed by the Lenders, Agent shall deliver to each of the Lenders that Lender’s pro rata share of such repayment. Each Lender’s participation commitment shall continue until the last to occur of any of the following events: (A) Agent ceases to be obligated to issue or cause the issuance of Letters of Credit hereunder; (B) no Letter of Credit issued hereunder remains outstanding and uncancelled or (C) all Persons (other than Borrower) have been fully reimbursed for all payments made under or relating to Letters of Credit.
(j) The obligations of a Lender to make payments to the Agent for the account of the Agent or the L/C Issuer with respect to a Letter of Credit shall be irrevocable, without any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(A) any lack of validity or enforceability of this Agreement or any of the Other Agreements;
(B) the existence of any claim, setoff, defense or other right which Borrower may have at any time against a beneficiary named in such Letter of Credit or any transferee of such Letter of Credit (or any Person for which any such transferee may be acting), the Agent, L/C Issuer, any Lender, or any other person, whether in connection with this Agreement, such Letter of Credit, the transactions contemplated herein or any related transactions (including any underlying transactions between Borrower or any other party and the beneficiary named in such Letter of Credit);
(C) any draft, certificate or any other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the performance or observance of any of the terms of this Agreement or any of the Other Agreements;
(E) any failure by the Agent to provide any notices required pursuant to this Agreement relating to such Letter of Credit;
(F) any payment by the L/C Issuer under any of the Letters of Credit against presentation of a draft or certificate which does not comply with the terms of such Letter of Credit (if, in the good faith opinion of the L/C Issuer, such prepayment is deemed to be appropriate); or
(G) the occurrence of any Default or Event of Default, provided, however, that after paying in full its reimbursement obligation hereunder, nothing herein shall adversely affect the right of Borrower or any Lender, as the case may be, to commence any proceeding against such L/C Issuer for any wrongful disbursement made by such L/C Issuer under a Letter of Credit as a result of acts or omissions constituting gross (not mere) negligence or willful misconduct on the part of such L/C issuer.
Appears in 1 contract
Samples: Loan and Security Agreement (Impco Technologies Inc)
Letter of Credit. (a) The Vendor Subject to all the terms and conditions hereof and satisfaction of all conditions precedent to borrowing under this Agreement and so long as no Potential Default or Event of Default is in existence, at the Borrower's request Xxxxxx shall secure its obligations issue letters of credit (individually, an "L/C" and collectively the "L/Cs") for the account of the Borrower in an aggregate amount not to exceed $5,000,000, subject to availability under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii)the Revolving Credit, and the Banks hereby agree to participate therein as more fully described in Section 9.2(d1.7 hereof. Each L/C shall be issued pursuant to an application and agreement for letter of credit (individually, an "L/C Agreement" and collectively the "L/C Agreements") by providing in the Purchaser with form of Exhibit C hereto, shall consist of a Letter standby or trade letter of Credit naming credit, shall be in form and substance acceptable to Xxxxxx and the Purchaser as beneficiary Banks, and shall have an expiry date not more than one year from the date of issuance thereof, subject to annual renewals (but in no event later than the Termination Date). The aggregate amount available to be drawn under all L/Cs issued pursuant hereto shall be deducted from the credit otherwise available under the Revolving Credit. In consideration of the issuance of L/Cs the Borrower agrees to pay Xxxxxx for an the benefit of the Banks a fee (the "L/C Participation Fee") in the amount per annum equal to the LC AmountApplicable Margin (but not to exceed 1% in any event) for Eurodollar Loans (computed on the basis of a 360 day year and actual days elapsed) of the face amount for each L/C issued for the account of the Borrower hereunder. Such Letter In addition, the Borrower shall pay Xxxxxx (x) a fee (the "L/C Issuance Fee") in the amount per annum equal to (i) for standby L/Cs, one-eighth of Credit shall one percent (0.125%) of the stated amount of each standby L/C issued hereunder and (ii) for commercial L/Cs, the customary issuance fee for commercial L/Cs as may be delivered established by Xxxxxx from time to the Purchaser concurrently with the execution of this Agreementtime, and the Vendor shall maintain the Letter of Credit (y) such drawing, negotiation, amendment and other administrative fees in effect, including connection with each L/C as may be established by way of renewals for the entire LC Claim Period, Xxxxxx from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG informationL/C Administrative Fee") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum ). All L/C Issuance Fees and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor L/C Participation Fees shall be solely liable for payable quarterly in arrears on the last day of each December, March, June and September commencing September 30, 1998 and on the Termination Date, and all premiums L/C Administrative Fees shall be payable on the date of issuance of each L/C hereunder and related costs associated with such insurance. The Purchaser shall grant reasonable access to on the non-PNG information to any such insurerdate required by Xxxxxx.
(b) Section 9.8(a) The Agent shall not impairgive prompt telephone, effect telex, or limit in any way whatsoever telecopy notice to each Bank of each issuance of, or amendment to, an L/C specifying the rights and remedies effective date of the Purchaser L/C or amendment, the amount, the beneficiary, and its Additional Indemnities otherwise available the expiration date of the L/C, in this Article 9each case as established originally or through the relevant amendment, as applicable, the account party or parties for the L/C, each Bank's pro rata participation in such L/C and whether the Agent has classified the L/C as a commercial, performance, or financial letter of credit for regulatory reporting purposes.
Appears in 1 contract
Samples: Secured Credit Agreement (Maverick Tube Corporation)
Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal Subject to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution terms and conditions of this Agreement, and the Vendor shall maintain the Letter Issuing Lender agrees to issue letters of Credit in effect, including by way of renewals credit for the entire LC Claim Periodaccount of Borrower (each, from time an "L/C") or to time prior purchase participations or execute indemnities or reimbursement obligations (each such undertaking, an "L/C UNDERTAKING") with respect to its expiry date. The Purchaser will be entitled to present such Letter letters of Credit for payment if it provides the Vendor with a Notice credit issued by an Underlying Issuer (as of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor mayprospective Underlying Issuer is to be Xxxxx Fargo) for the account of Borrower. To request the issuance of an L/C or an L/C Undertaking (or the amendment, renewal, or extension of an outstanding L/C or L/C Undertaking), Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the Issuing Lender) to the Issuing Lender and Agent (reasonably in lieu advance of the requested date of issuance, amendment, renewal, or extension) a notice requesting the issuance of an L/C or L/C Undertaking, or identifying the L/C or L/C Undertaking to be amended, renewed, or extended, the date of issuance, amendment, renewal, or extension, the date on which such L/C or L/C Undertaking is to expire, the amount of such L/C or L/C Undertaking, the name and address of the beneficiary thereof (or the beneficiary of the Underlying Letter of Credit, secure its obligations under Section 9.2(cas applicable), by providing environmental insurance wherein the insurer (who and such other information as shall be satisfactory necessary to prepare, amend, renew, or extend such L/C or L/C Undertaking. If requested by the Issuing Lender, Borrower also shall be an applicant under the application with respect to any Underlying Letter of Credit that is to be the subject of an L/C Undertaking. The Issuing Lender shall have no obligation to issue a Letter of Credit if any of the following would result after giving effect to the Purchaserrequested Letter of Credit:
(i) the Letter of Credit Usage would exceed the Borrowing Base less the amount of outstanding Advances, acting reasonablyor
(ii) agrees to unconditionally indemnifythe Letter of Credit Usage would exceed $5,000,000, for or
(iii) the remainder Letter of Credit Usage would exceed the LC Claim Period, PEC, Maximum Revolver Amount less the Purchaser then extant amount of outstanding Advances. Borrower and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory Lender Group acknowledge and agree that certain Underlying Letters of Credit may be issued to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") support letters of credit that the Purchaser already are outstanding as of the Signing Date or at any time thereafter has Closing Date. Each Letter of Credit (and corresponding Underlying Letter of Credit) shall be in respect of non-Canadian petroleum form and natural gas exploration, development and production operations carried out by any one or more of PEC or any substance acceptable to the Issuing Lender (in the exercise of its predecessors or subsidiaries of predecessors; providedPermitted Discretion), however, including the requirement that the Vendor amounts payable thereunder must be payable in Dollars. If Issuing Lender is obligated to advance funds under a Letter of Credit, Borrower immediately shall reimburse such L/C Disbursement to Issuing Lender by paying to Agent an amount equal to such L/C Disbursement not later than 11:00 a.m., California time, on the date that such L/C Disbursement is made, if Borrower shall have received written or telephonic notice of such L/C Disbursement prior to 10:00 a.m., California time, on such date, or, if such notice has not been received by Borrower prior to such time on such date, then not later than 11:00 a.m., California time, on the Business Day that Borrower receives such notice, if such notice is received prior to 10:00 a.m., California time, on the date of receipt, and, in the absence of such reimbursement, the L/C Disbursement immediately and automatically shall be solely liable for all premiums deemed to be an Advance hereunder and, thereafter, shall bear interest at the rate then applicable to Advances that are Base Rate Loans under SECTION 2.6. To the extent an L/C Disbursement is deemed to be an Advance hereunder, Borrower's obligation to reimburse such L/C Disbursement shall be discharged and related costs associated with replaced by the resulting Advance. Promptly following receipt by Agent of any payment from Borrower pursuant to this paragraph, Agent shall distribute such insurance. The Purchaser shall grant reasonable access payment to the non-PNG information Issuing Lender or, to any the extent that Lenders have made payments pursuant to SECTION 2.12(C) to reimburse the Issuing Lender, then to such insurerLenders and the Issuing Lender as their interest may appear.
(b) Section 9.8(aPromptly following receipt of a notice of L/C Disbursement pursuant to SECTION 2.12(A), each Lender with a Revolver Commitment agrees to fund its Pro Rata Share of any Advance deemed made pursuant to the foregoing subsection on the same terms and conditions as if Borrower had requested such Advance and Agent shall promptly pay to Issuing Lender the amounts so received by it from the Lenders. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Lender or the Lenders with Revolver Commitment, the Issuing Lender shall be deemed to have granted to each Lender with a Revolver Commitment, and each Lender with a Revolver Commitment shall be deemed to have purchased, a participation in each Letter of Credit, in an amount equal to its Pro Rata Share of the Risk Participation Liability of such Letter of Credit, and each such Lender agrees to pay to Agent, for the account of the Issuing Lender, such Lender's Pro Rata Share of any payments made by the Issuing Lender under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender with a Revolver Commitment hereby absolutely and unconditionally agrees to pay to Agent, for the account of the Issuing Lender, such Lender's Pro Rata Share of each L/C Disbursement made by the Issuing Lender and not reimbursed by Borrower on the date due as provided in clause (a) of this Section, or of any reimbursement payment required to be refunded to Borrower for any reason. Each Lender with a Revolver Commitment acknowledges and agrees that its obligation to deliver to Agent, for the account of the Issuing Lender, an amount equal to its respective Pro Rata Share pursuant to this SECTION 2.12(B) shall be absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default or Default or the failure to satisfy any condition set forth in SECTION 3 hereof. If any such Lender fails to make available to Agent the amount of such Lender's Pro Rata Share of any payments made by the Issuing Lender in respect of such Letter of Credit as provided in this Section, Agent (for the account of the Issuing Lender) shall be entitled to recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender Rate until paid in full.
(c) Borrower hereby agrees to indemnify, save, defend, and hold the Lender Group harmless from any loss, cost, expense, or liability, and reasonable attorneys fees incurred by the Lender Group arising out of or in connection with any Letter of Credit; PROVIDED, HOWEVER, that Borrower shall not impairbe obligated hereunder to indemnify for any loss, effect cost, expense, or limit liability that is caused by the gross negligence or willful misconduct of the Issuing Lender or any other member of the Lender Group. Borrower agrees to be bound by the Underlying Issuer's regulations and interpretations of any Underlying Letter of Credit or by Issuing Lender's interpretations of any L/C issued by Issuing Lender to or for Borrower's account, even though this interpretation may be different from Borrower's own, and Borrower understands and agrees that the Lender Group 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 Letter of Credit or any modifications, amendments, or supplements thereto. Borrower understands that the L/C Undertakings may require Issuing Lender to indemnify the Underlying Issuer for certain costs or liabilities arising out of claims by Borrower against such Underlying Issuer. Borrower hereby agrees to indemnify, save, defend, and hold the Lender Group harmless with respect to any loss, cost, expense (including reasonable attorneys fees), or liability incurred by the Lender Group under any L/C Undertaking as a result of the Lender Group's indemnification of any Underlying Issuer; PROVIDED, HOWEVER, that Borrower shall not be obligated hereunder to indemnify for any loss, cost, expense, or liability that is caused by the gross negligence or willful misconduct of the Issuing Lender or any other member of the Lender Group.
(d) Borrower hereby authorizes and directs any Underlying Issuer to deliver to the Issuing Lender all instruments, documents, and other writings and property received by such Underlying Issuer pursuant to such Underlying Letter of Credit and to accept and rely upon the Issuing Lender's instructions with respect to all matters arising in connection with such Underlying Letter of Credit and the related application.
(e) Any and all charges, commissions, fees, and costs incurred by the Issuing Lender relating to Underlying Letters of Credit shall be Lender Group Expenses for purposes of this Agreement and immediately shall be reimbursable by Borrower to Agent for the account of the Issuing Lender; it being acknowledged and agreed by Borrower that, as of the Closing Date, the issuance charge imposed by the prospective Underlying Issuer is .825% per annum times the face amount of each Underlying Letter of Credit, that such issuance charge may be changed from time to time, and that the Underlying Issuer also imposes a schedule of charges for amendments, extensions, drawings, and renewals.
(f) If by reason of (i) any change in any way whatsoever applicable law, treaty, rule, or regulation or any change in the rights and remedies interpretation or application thereof by any Governmental Authority, or (ii) compliance by the Underlying Issuer or the Lender Group with any direction, request, or requirement (irrespective of whether having the force of law) of any Governmental Authority or monetary authority including, Regulation D of the Purchaser Federal Reserve Board as from time to time in effect (and its Additional Indemnities otherwise available any successor thereto):
(i) any reserve, deposit, or similar requirement is or shall be imposed or modified in respect of any Letter of Credit issued hereunder, or
(ii) there shall be imposed on the Underlying Issuer or the Lender Group any other condition regarding any Underlying Letter of Credit or any Letter of Credit issued pursuant hereto,
(g) and the result of the foregoing is to increase, directly or indirectly, the cost to the Lender Group of issuing, making, guaranteeing, or maintaining any Letter of Credit or to reduce the amount receivable in respect thereof by the Lender Group, then, and in any such case, Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify Borrower, and Borrower shall pay on demand such amounts as Agent may specify to be necessary to compensate the Lender Group for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the Base Rate Loans. The determination by Agent of any amount due pursuant to this Article 9Section, as set forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto.
Appears in 1 contract
Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal Subject to the LC Amount. Such Letter of Credit shall be delivered to the Purchaser concurrently with the execution terms and conditions of this Agreement, and the Vendor shall maintain the Letter of Credit in effectBank, on behalf of the Banks, agrees to issue and amend (including by way of renewals without limitation, to extend or renew) for the entire LC Claim Periodaccount of the Company, the Letter of Credit as may be requested from time to time prior by the Company, from and including the Effective Date to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c)Termination Date, insofar as it relates up to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only maximum Issued Amount at any one time outstanding equal to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry Total Commitments of the then outstanding Letter Banks minus the sum of Credit; provided(i) the aggregate principal amount of Loans outstanding, that, plus (ii) the Vendor shall maintain the Letter aggregate principal amount of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessorsReimbursement Obligations outstanding; provided, however, that the Vendor expiration date of the Letter of Credit shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to not extend beyond the non-PNG information to any such insurerTermination Date.
(b) Each Bank severally agrees that it shall be absolutely, unconditionally and irrevocably liable, without regard to the occurrence of any Default or Event of Default or any condition precedent whatsoever, to the extent of such Bank's pro rata share of the Total Commitments of the Banks, to reimburse the Letter of Credit Bank for the amount of each Drawing paid by the Letter of Credit Bank under the Letter of Credit to the extent such amount is not reimbursed by the Company in accordance with Section 9.8(a2.3 hereof. Each Bank's obligation to reimburse the Letter of Credit Bank pursuant to this Section 2.1(b) shall not impairbe affected by any circumstances, effect including, without limitation, (i) any set-off, counterclaim, recoupment, defense or limit other right which such Bank may have against the Letter of Credit Bank, the Company, any direct or indirect beneficiary of the Letter of Credit, the Agent or any other Person whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Company; (iv) any breach of this Agreement by the Company, the Agent, the Letter of Credit Bank or any other Bank; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided, however, that the Banks shall not be obligated to reimburse the Letter of Credit Bank pursuant to this Section 2.1(b) with respect to the Letter of Credit if (i) the Letter of Credit Bank has made payment pursuant to a Drawing with respect to the Letter of Credit and the making of such payment constituted gross negligence or willful misconduct on the part of the Letter of Credit Bank or (ii) the Letter of Credit Bank increases the Issued Amount of the Letter of Credit (other than as a result of the automatic reinstatement provisions contained therein) after an Event of Default has been declared by any Bank or the Majority Banks pursuant to Article VII hereof and written notice thereof has been received by the Letter of Credit Bank or after an Event of Default specified in Section 7.1(c) hereof has occurred. Each Bank's obligations to reimburse the Letter of Credit Bank shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Reimbursement Obligation of the Company is rescinded or must otherwise be restored or returned by the Letter of Credit Bank upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company or upon or a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Company or any substantial part of its property, or otherwise, all as though such payment had not been made. Upon receipt of a notice of its obligation to reimburse the Letter of Credit Bank prior to 11:00 a.m. (New York time) on a Business Day, a Bank shall make such reimbursement on such Business Day; if such notice is received after 11:00 a.m. (New York time), reimbursement shall be due on the next Business Day. The failure of any Bank to honor its obligations hereunder shall not relieve any other Bank of its duty to honor its obligations hereunder. Upon the written request of a Bank, the Letter of Credit Bank shall promptly deliver to such Bank a copy of the Letter of Credit and copies of all material documents delivered to the Letter of Credit Bank in connection with any Drawing with respect to the Letter of Credit.
(c) Each payment made by a Bank to the Letter of Credit Bank pursuant to paragraph (b) above shall be treated as the purchase by such Bank of a participating interest in the Company's Reimbursement Obligation under Section 2.3 hereof in an amount equal to such payment. Each Bank, so long as it has made the payment required to be made by it pursuant to Section 2.1(b) hereof, shall share in accordance with its pro rata share of the Total Commitments of the Banks in any way whatsoever interest which accrues pursuant to Section 2.3(b) hereof. All amounts recovered by the Agent hereunder and which are applied by the Agent to the Reimbursement Obligations of the Company under Section 2.3 hereof shall be distributed by the Agent to the Banks who have made the payments required to be made by them pursuant to Section 2.1(b) hereof pro rata in accordance with their respective share of the Total Commitments of the Banks.
(d) If and to the extent that any Bank shall fail to make available to the Letter of Credit Bank the amount required to be paid by such Bank pursuant to Section 2.1(b) hereof, the Letter of Credit Bank shall be subrogated to the rights of such Bank under this Agreement to the extent of such failure and remedies shall thereafter (until such Bank shall make such amount available to the Letter of Credit Bank) be entitled to receive all amounts owing to such Bank hereunder and to the percentage of voting rights of such Bank under this Agreement equal to the percentage the amount such Bank failed to pay bears to the Issued Amount of the Purchaser Letter of Credit and its Additional Indemnities otherwise available the aggregate unpaid principal amount of all outstanding Reimbursement Obligations and Loans at such time. If any Bank fails to reimburse the Letter of Credit Bank as provided in this Article 9Section 2.1(b) hereof or delays in making such payment, such unreimbursed amount shall bear interest at a rate per annum equal to (i) from the date due to the date three Business Days after such payment is due, the Federal Funds Rate and (ii) from the date three Business Days after the date such payment is due to the date such payment is made, the Base Rate in effect for each such day plus 2%.
Appears in 1 contract
Letter of Credit. (a) The Vendor following terms shall secure its obligations under Section 9.2(capply to the Letter of Credit:
(i) Subject to the terms and conditions set forth herein, (A) the Issuing Lender agrees (1) upon the written request of the Borrower, to issue to the Beneficiary on the Closing Date, for the account of the Loan Parties, one irrevocable and non-transferable An [*] represents confidential information that has been omitted and filed separately with the Securities and Exchange Commission. standby letter of credit (the “Letter of Credit”), insofar as it relates and (2) to honor drawings under the Letter of Credit upon the delivery of a Purchase duly executed sight draft and a duly executed Draw Certification Notice; and (B) the Lenders severally agree to participate in the Letter of Credit and any drawings thereunder in accordance with Section 2.01(c).
(ii) The Letter of Credit shall (A) be denominated in Dollars, (B) have a face amount not exceeding the Total Commitment, (C) be issued on the Closing Date, (D) have an expiry date of not later than the tenth (10th) anniversary of the Closing Date, and (E) support only the reinsurance obligations of the Borrower to the Beneficiary under the Reinsurance Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC AmountCovered Liabilities. Such The Letter of Credit shall be delivered to the Purchaser concurrently utilized in accordance with the execution of terms and conditions applicable to it in this Agreement, the Reinsurance Agreement and the Vendor Beneficiary Letter Agreement.
(iii) Anything contained in this Agreement to the contrary notwithstanding, the Issuing Lender shall maintain not be under any obligation to issue the Letter of Credit if any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any Law applicable to the Issuing Lender or any request or directive (whether or not having the force of Law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in effect, including by way of renewals for the entire LC Claim Period, from time to time prior to its expiry date. particular.
(iv) The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is Issuing Lender shall not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain amend the Letter of Credit (A) without the prior written consent of the Lenders (such consent not to be unreasonably withheld, it being understood that it shall not be unreasonable for the full LC Amount in effect for Lenders to withhold their consent if any such amendment would reasonably be expected to have an adverse affect on the entire LC Claim Period notwithstanding that Lenders hereunder) or (B) if (x) the Purchaser may Issuing Lender would have presented a had no obligation to initially issue the Letter of Credit for payment earlier in its amended form under the LC Claim Period. At any time after terms hereof, or (y) the Closing Date, Beneficiary does not accept the Vendor may, in lieu of proposed amendment to the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. (ai) The Vendor As of the Closing Date, Newco shall, and Collegium shall secure its obligations under Section 9.2(ccause Newco to, deliver to Depomed an irrevocable standby letter of credit from a nationally recognized financial institution (the “Financial Institution”), insofar as it relates in form and substance reasonably acceptable to Depomed, in favor of Depomed (the “Letter of Credit”) in an aggregate amount of Thirty-Three Million Seven Hundred Fifty Thousand Dollars ($33,750,000) (the “Maximum Stated Value”), to be issued pursuant to a Purchase Agreement Default master agreement in respect of Section 5.1(ii), form and Section 9.2(d) by providing substance reasonably acceptable to Depomed (the Purchaser with a “Master Letter of Credit naming Agreement”, and together with the Purchaser as beneficiary for an amount equal to Letter of Credit, the LC Amount. Such “Letter of Credit Documents”). Depomed shall be delivered have the right to draw upon the Letter of Credit, up to the Purchaser concurrently Maximum Stated Value, in the event that there is a shortfall in the Minimum Quarterly Payment made to Depomed by Collegium pursuant to Section 7.3(a) hereof, solely to the extent of such quarterly shortfall as determined in good faith by Depomed (a “Quarterly Shortfall”), provided that Collegium does not pay the amount of such Quarterly Shortfall to Depomed within forty-five (45) days after the last day of such calendar quarter.
(ii) At any time prior to the Expiration Date (as defined below), Depomed may provide a written notice to the Financial Institution and Newco asserting a Quarterly Shortfall (the “Claim Notice”). The Claim Notice shall state the amount of such Quarterly Shortfall (the “Claim Amount”). Following its receipt of a Claim Notice, the Financial Institution shall permit Depomed to draw upon the Letter of Credit in the amount of the Claim Amount and shall deliver the applicable funds under the Letter of Credit in accordance with the execution of this AgreementClaim Notice.
(iii) Newco shall, and the Vendor Collegium shall cause Newco to, maintain the Letter of Credit in effecteffect until the earliest of (A) 5:00 p.m. eastern time on the day that is sixty-one (61) days after the fourth anniversary of the Closing Date, including by way of renewals for (B) the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such date on which the Financial Institution honors a drawdown on the Letter of Credit for payment if it provides which exhausts the Vendor with a Notice Maximum Stated Amount and (C) the termination of Claim for Indemnified Losses pursuant to Section 9.2(cthis Agreement by either party ((A), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii(B) or (C), or Section 9.2(d) but only to the extent of such Indemnified Losses or “Expiration Date”). For clarity, if a renewal there is any drawdown on the Letter of Credit is pursuant to this Section 7.7(a)(iii), Newco shall not provided by be obligated, and Collegium shall not be obligated to cause Newco to, reissue the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; providedCredit at the full Maximum Stated Value or at any value. Further, thatif there is any drawdown on the Letter of Credit pursuant to this Section 7.7(a)(iii), the Vendor Newco shall not be obligated, and Collegium shall not be obligated to cause Newco, to maintain the Letter of Credit in an aggregate amount of the Maximum Stated Value for the full LC Amount term of this Agreement. Certain information in effect for this document has been omitted and filed separately with the entire LC Claim Period notwithstanding that the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim PeriodSecurities and Exchange Commission. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory Confidential treatment has been requested with respect to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insureromitted portions marked [***].
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Commercialization Agreement (Collegium Pharmaceutical, Inc)
Letter of Credit. (a) The Vendor shall secure its obligations under Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC Amount. Such A Letter of Credit shall be delivered issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of any Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i) the Purchaser concurrently Applicable Fronting Exposure of each Issuing Bank shall not exceed its Revolving Commitment, (ii) the aggregate Revolving Exposures shall not exceed the aggregate Revolving Commitments and (iii) the aggregate LC Exposure shall not exceed the Letter of Credit Sublimit. No Issuing Bank shall be under any obligation to issue any Letter of Credit if (i) any order, judgment or decree of any Governmental Authority or arbitrator shall enjoin or restrain such Issuing Bank from issuing the Letter of Credit, or any law applicable to such Issuing Bank any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit the execution issuance of this Agreement, and the Vendor shall maintain letters of credit generally or the Letter of Credit in effectparticular or shall impose upon such Issuing Bank with respect to the Letter of Credit any restriction, including reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such Issuing Bank in good fxxxx xxxxx material to it, (ii) except as otherwise agreed by way the Administrative Agent and the such Issuing Bank, the Letter of renewals for Credit is in an initial stated amount less than $100,000, in the entire LC Claim Periodcase of a commercial Letter of Credit, from time to time prior to its expiry date. The Purchaser will be entitled to present or $500,000, in the case of a standby Letter of Credit , (iii) the issuance of such Letter of Credit for payment would violate one or more policies of the Issuing Bank applicable to letters of credit generally or (iv) any Lender is at that time a Defaulting Lender, if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant after giving effect to Section 9.2(c2.22(a)(iv), insofar as it relates any Defaulting Lender Fronting Exposure remains outstanding, unless such Issuing Bank has entered into arrangements, including the delivery of cash collateral, reasonably satisfactory to a Purchase Agreement Default in respect of Section 5.1(ii), such Issuing Bank with the Borrower or Section 9.2(d) but only such Lender to the extent of eliminate such Indemnified Losses or if a renewal Letter of Credit is not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain Issuing Bank’s Defaulting Lender Fronting Exposure arising from either the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented a then proposed to be issued or such Letter of Credit for payment earlier in the and all other LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall be satisfactory Exposure as to the Purchaser, acting reasonably) agrees to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter which such Issuing Bank has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerDefaulting Lender Fronting Exposure.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Samples: Credit Agreement (Schiff Nutrition International, Inc.)
Letter of Credit. (a) The Vendor shall secure its obligations If, under Section 9.2(c)the Lease, insofar as it relates Lessee is required or elects to a Purchase Agreement Default in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser provide Lessor with a Letter of Credit, such Letter of Credit naming will be issued and payable by a Pre-Approved Bank or another bank acceptable to Lessor in its sole and absolute discretion and substantially in the Purchaser as beneficiary for an amount equal form of Schedule 13 and otherwise in form and substance acceptable to Lessor in its sole and absolute discretion.
(b) The Letter of Credit may have a validity period or periods ending prior to the Required LC Amount. Such Expiry Date, provided that (i) the Letter of Credit shall, in each case, be renewed, extended or reissued and delivered to Lessor not later than 30 Business Days prior to its expiry; and (ii) a Letter of Credit shall be delivered remain in force at all times up to the Purchaser concurrently with Required LC Expiry Date. Lessee acknowledges and agrees that its failure to renew, extend or reissue the execution Letter of this AgreementCredit when and as provided in the foregoing sentence shall constitute an immediate Event of Default, and the Vendor which shall maintain entitle Lessor to immediately draw upon the Letter of Credit in effectthe full amount thereof.
(c) If at any time during the Term, including by way of renewals Lessor determines in its sole and absolute discretion that the current issuing or confirming bank for the entire LC Claim Period, from time to time prior to its expiry date. The Purchaser will be entitled to present such Letter of Credit for payment if it provides the Vendor with a Notice of Claim for Indemnified Losses pursuant to Section 9.2(c), insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only to the extent of such Indemnified Losses or if a renewal Letter of Credit is not provided no longer an acceptable issuing or confirming bank (whether by virtue of a material adverse change in its financial condition, a decrease in any credit rating of its long-term unsecured debt obligations, or for any other reason), Lessee shall within five (5) Business Days after the Vendor to the Purchaser at least 30 days prior to the expiry date of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain any such notice from Lessor cause the Letter of Credit for the full LC Amount in effect for the entire LC Claim Period notwithstanding that the Purchaser may have presented to be replaced by a Letter of Credit for payment earlier issued by another bank acceptable to Lessor in the LC Claim Period. At any time after the Closing Date, the Vendor may, its sole and absolute discretion and (if requested by Lessor in lieu its sole and absolute discretion) that such replacement Letter of Credit is confirmed by another bank acceptable to Lessor in its sole and absolute discretion.
(d) If Lessor makes a drawing under the Letter of Credit, secure its obligations Lessee shall, following a demand in writing by Lessor, immediately cause the maximum amount available for drawing under Section 9.2(c), by providing environmental insurance wherein the insurer (who shall Letter of Credit to be satisfactory restored to the Purchaser, acting reasonably) agrees level at which it stood immediately prior to unconditionally indemnify, for the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurerdrawing.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.
Appears in 1 contract
Letter of Credit. (ai) The Vendor If Sublessee elects to provide the security deposit in the form of a letter of credit, Sublessee at its expense shall secure its obligations under deliver to Sublessor an irrevocable and negotiable standby letter of credit in accordance with Section 9.2(c), insofar as it relates to a Purchase Agreement Default 5(a) hereof and in respect of Section 5.1(ii), and Section 9.2(d) by providing the Purchaser with a Letter of Credit naming the Purchaser as beneficiary for an amount equal to the LC Security Deposit Amount, in the form attached hereto as Exhibit C and made a part hereof, the terms of which shall conform to the requirements of this Section 5(b), and which shall be issued by a nationally recognized commercial bank acceptable to Sublessor as security for Sublessee's full and faithful performance of every term and condition of this Sublease (which bank shall maintain an office in the San Francisco Bay Area to which the letter of credit may be presented by Sublessor for purposes of immediately drawing therefrom), and which names Sublessor as the beneficiary thereof (the "LETTER OF CREDIT"). Such The Letter of Credit shall have an initial term of not less than one (1) year, and shall provide that the Letter of Credit shall be delivered renewed automatically unless the issuing bank delivers written notice to Sublessor at least sixty (60) days prior to the Purchaser concurrently with expiration date thereof advising Sublessor that the execution issuing bank has elected not to renew the term of this Agreement, and the Vendor shall maintain the Letter of Credit in effect, including by way of renewals for (the entire LC Claim Period, from time to time prior to its expiry date"BANK'S WRITTEN NOTICE"). The Purchaser will be entitled to present such Letter of Credit for payment if it provides shall be renewed by Sublessee through the Vendor period ending on August 31, 2004, to provide Sublessor with a Notice of Claim for Indemnified Losses security in the event that Sublessee fails to perform all its obligations pursuant to Section 9.2(c)this Sublease prior to expiration of the Sublease Term, insofar as it relates to a Purchase Agreement Default in respect of Section 5.1(ii), or Section 9.2(d) but only subject to the extent of such Indemnified Losses or if a renewal Letter of Credit is Return Obligation, as defined below. If (i) the issuing bank shall give the Bank's Written Notice to Sublessor that it will not provided by the Vendor to the Purchaser at least 30 days prior to the expiry of the then outstanding Letter of Credit; provided, that, the Vendor shall maintain renew the Letter of Credit for an additional twelve (12) months beyond the full LC Amount in effect for then current expiry date, and (ii) if, by and including the entire LC Claim Period notwithstanding that thirtieth (30th) day prior to the Purchaser may have presented a Letter of Credit for payment earlier in the LC Claim Period. At any time after the Closing Date, the Vendor may, in lieu then current expiry date of the Letter of Credit, secure its obligations under Section 9.2(c), by providing environmental insurance wherein Sublessee fails to renew the insurer (who shall be satisfactory Letter of Credit or deposit with Sublessor a replacement Letter of Credit or deposit with Sublessor a Cash Security Deposit equal to the PurchaserSecurity Deposit Amount, acting reasonably) agrees to unconditionally indemnify, for then such occurrence as described in the remainder of the LC Claim Period, PEC, the Purchaser and the Purchaser's Affiliates for any Non-PNG Related Environmental Liabilities on terms satisfactory to the Purchaser, acting reasonably, having regard to all information (the "non-PNG information") that the Purchaser as of the Signing Date or at any time thereafter has in respect of non-Canadian petroleum and natural gas exploration, development and production operations carried out by any one or more of PEC or any of its predecessors or subsidiaries of predecessors; provided, however, that the Vendor shall be solely liable for all premiums and related costs associated with such insurance. The Purchaser shall grant reasonable access to the non-PNG information to any such insurer.
(b) Section 9.8(a) shall not impair, effect or limit in any way whatsoever the rights and remedies of the Purchaser and its Additional Indemnities otherwise available in this Article 9.preceding
Appears in 1 contract
Samples: Sublease (Argonaut Technologies Inc)
