Letters of Credit. Upon notice to Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw on a letter of credit posted for its benefit upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.
Appears in 2 contracts
Samples: Margin Loan Agreement (HNA Tourism Group Co., Ltd.), Margin Loan Agreement (HNA Tourism Group Co., Ltd.)
Letters of Credit. Upon notice to Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw on a letter of credit posted for its benefit upon demand Subject to the applicable issuing bank terms and conditions set forth herein, (i) the “Requested Draw”) and Issuing Lender agrees, in reliance upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt agreements of the Requested DrawLenders set forth in this Section 2.4, (A) from time to time on any Business Day during the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders)period from the Effective Date until the Termination Date, pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter issue Letters of Credit because it has become a Lender subsequent in Dollars for the account of either Borrower or any Subsidiary of either Borrower, and to the issue date of such Eligible Letter amend or extend Letters of Credit or if previously issued by it, in accordance with clause (b) below, and (B) to honor drawings under the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit; and (ii) as soon as practicable the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of either Borrower or any Subsidiary of either Borrower and any drawings thereunder; provided that after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender giving effect to any LOC Credit Extension with respect to any non-replaced Letter of Credit, (w) the aggregate amount of outstanding Letters of Credit issued by the Issuing Lender shall not exceed its LOC Commitment, (x) the aggregate Outstanding Amount of all Revolving Obligations shall not exceed the aggregate amount of all Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Revolving Commitment Percentage of the Outstanding Amount of all LOC Obligations, plus such Lender’s Revolving Commitment Percentage of the Outstanding Amount of all Swingline Loans shall not exceed such Lender’s Revolving Commitment and (z) the Outstanding Amount of the LOC Obligations shall not exceed the LOC Sublimit. Each request by a Borrower for the issuance or revised letter amendment of credita Letter of Credit shall be deemed to be a representation by the Borrowers that the LOC Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly each Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof.
Appears in 2 contracts
Samples: Credit Agreement (Speedway Motorsports LLC), Credit Agreement (Speedway Motorsports Inc)
Letters of Credit. (a) Upon notice the request of the Borrower from time to Administrative Agenttime, the Lender shall, in accordance with the provisions of this Section 2.7, issue one or more Letters of Credit up to an aggregate amount available to be drawn (plus the aggregate amount of unreimbursed drawings under all Letters of Credit) at any Applicable time not to exceed the Letter of Credit Facility; provided, that (1) all Letter of Credit Documents in connection with each Letter of Credit shall be satisfactory to the Lender that is an Accelerating Lender may draw on in its sole discretion, (2) no Letter of Credit shall be issued if, after issuance thereof, the sum of the aggregate principal amount of Revolving Credit Loans outstanding, plus the aggregate amount available to be drawn under all Letters of Credit, plus the aggregate amount of any unreimbursed drawings under Letters of Credit, would exceed the lesser of (A) the Revolving Credit Facility and (B) the Borrowing Base plus the Letter of Credit Reserve, (3) each Letter of Credit shall be a documentary letter of credit posted issued to or for its the benefit upon demand of a supplier of the Borrower in connection with the purchase of Inventory or a standby letter of credit issued to a beneficiary and for a purpose acceptable to the applicable issuing bank Lender in its sole discretion, and (4) no Letter of Credit shall have an initial term longer than one year or an expiration date later than the “Requested Draw”Termination Date.
(b) The Borrower acknowledges and upon receipt agrees that if and to the extent the Borrower shall fail to reimburse the Lender under any Letter of Credit Documents, the Borrower hereby irrevocably requests and directs the Lender, subject to and in accordance with the provisions of Section 2.1, to make payment on its behalf and the amount of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and payment by the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of Lender shall constitute a Revolving Credit Loan made at the Requested Draw, the amount so received is in excess time of such Applicable Lender’s payment.
(c) The issuance and its Agented Lender’s) Advances negotiation of Letters of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (or other Obligations then due and owing such Lenders1993 Revision), pay any as published in the International Chamber of Commerce Uniform Customs and Practices, Publication No. 500 or such excess amounts to other policies and practices as may be followed by the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as similar letters of credit at the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credittime.
Appears in 2 contracts
Samples: Loan and Security Agreement (International Comfort Products Corp), Loan Agreement (International Comfort Products Corp)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the account of the Borrower or certain Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letter of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Total Outstandings would exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans would exceed such Lender’s Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is an Accelerating Lender may draw not otherwise compensated hereunder) not in effect on a the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally and applicable to all letter of credit posted for its benefit upon demand applicants generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $10,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars; or
(E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the applicable issuing bank L/C Issuer (in its sole discretion) with the “Requested Draw”Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and upon receipt all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) The L/C Issuer shall act on behalf of the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Gruma Sab De Cv), Credit Agreement (Gruma Sab De Cv)
Letters of Credit. Upon notice As regards policies or bonds issued by the Company within the scope of this Agreement, the Company agrees that when it shall file with the insurance regulatory authority or set up on its books reserves for losses, unearned premium reserves and loss development allowance (to Administrative Agentbe calculated using the formula below) covered hereunder which it shall be required by law to set up, it will forward to the Reinsurer a statement showing the proportion of such reserves which is applicable to the Reinsurer. The Reinsurer hereby agrees that it will apply for and secure delivery to the Company of a clean, irrevocable and unconditional Letter of Credit, issued by a bank, and containing provisions acceptable to the insurance regulatory authorities having jurisdiction over the Company's reserves in an amount equal to the Reinsurer's proportion of reserves in respect of losses, unearned premium reserves and loss development allowances and allocated loss adjustment expense relating thereto, and losses and allocated loss adjustment expense paid by the Company but not recovered from the Reinsurer as shown in the statement prepared by the Company (hereinafter referred to as "Reinsurer's Obligations"). The Letter of Credit shall be issued for a period of not less than one year, and shall be automatically extended for one year from its date of expiration or any future expiration date unless thirty (30) days prior to any expiration date the issuing bank shall notify the Company by certified or registered mail that the issuing bank elects not to consider the Letter of Credit extended for any additional period. The Reinsurer and the Company agree that the Letters of Credit provided by the Reinsurer pursuant to the provisions of this Agreement may be drawn upon at any time, notwithstanding any other provision of this Agreement, and be utilized by the Company or any successor, by operation of law, of the Company including, without limitation, any Applicable Lender that liquidator, rehabilitator, receiver or conservator of the Company for the following purposes, unless otherwise provided for in a separate Trust Agreement:
A. to reimburse the Company for the Reinsurer's Obligations, the payment of which is an Accelerating Lender may draw on a letter due under the terms of credit posted for its benefit upon demand this Agreement and which has not been otherwise paid;
B. to the applicable issuing bank (the “Requested Draw”) and upon receipt make refund of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received sum which is in excess of such Applicable Lender’s (the actual amount required to pay the Reinsurer's Obligations under this Agreement;
C. to fund an account with the Company for the Reinsurer's Obligations. Such cash deposit shall be held in an interest bearing account separate from the Company's other assets, and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such interest thereon not in excess amounts of the prime rate shall accrue to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes benefit of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full)Reinsurer. In the event that the amount drawn by the Company on any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent is in excess of the actual amount required for A) or C), the Company shall promptly return to the issue date Reinsurer the excess amount so drawn. All of the foregoing shall be applied without diminution because of insolvency on the part of the Company or the Reinsurer. The issuing bank shall have no responsibility whatsoever in connection with the propriety of withdrawals made by the Company or the disposition of funds withdrawn, except to ensure that withdrawals are made only upon the order of properly authorized representatives of the Company. At annual intervals, or more frequently as agreed, but never more frequently than quarterly, the Company shall prepare a specific statement of the Reinsurer's Obligations, for the sole purpose of amending the Letter of Credit, in the following manner:
A. if the statement shows that the Reinsurer's Obligations exceed the balance of credit as of the statement date, the Reinsurer shall, within thirty (30) days after receipt of notice of such Eligible excess, secure delivery to the Company of an amendment to the Letter of Credit or if increasing the amount of any Eligible credit by the amount of such difference;
B. if however, the statement shows that the Reinsurer's Obligations are less than the balance of credit as of the statement date, the Company shall within thirty (30) days after receipt of written request from the Reinsurer, release such excess credit by agreeing to secure an amendment to the Letter of Credit needs to be adjusted in reducing the amount as a result of an assignment among Lenders that alters credit available by the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts amount of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of excess credit.
Appears in 2 contracts
Samples: Quota Share Treaty (Amerinst Insurance Group LTD), Quota Share Treaty (Amerinst Insurance Group LTD)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the any member of the Consolidated Group, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (y) without duplication, the aggregate Outstanding Amount of the Committed Revolving Loans of any Revolving Lender, plus such Revolving Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Lender’s Revolving Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is an Accelerating Lender may draw not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer reasonably deems material to it;
(B) the Letter of Credit is a commercial letter of credit posted for its benefit upon demand or the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than Five Hundred Thousand and No/100 Dollars ($500,000.00);
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Revolving Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the applicable issuing bank L/C Issuer (in its sole discretion) with the “Requested Draw”Borrower or such Revolving Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and upon receipt all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic restatement of the stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) The L/C Issuer shall act on behalf of the Advances of all Agented Revolving Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Cole Credit Property Trust III, Inc.), Credit Agreement (Cole Credit Property Trust III, Inc.)
Letters of Credit. Upon notice The Parent and the Purchaser agree to Administrative Agentuse their reasonable efforts (a) to arrange for substitute letters of credit and the Parent and the Purchaser guarantee, respectively, to replace (i) the letters of credit and guarantees entered into by or on behalf of the Seller or any Applicable Lender of its Affiliates (other than the Publishing Subsidiaries) outstanding as of the date of this Agreement in connection with any Business as set forth in Section 5.07 of the Disclosure Schedule and (ii) any letters of credit and guarantees entered into by or on behalf of the Seller or any of its Affiliates (other than the Publishing Subsidiaries) in the ordinary course of business consistent with past practice on or after the date of this Agreement and prior to the Closing (together, the "SELLER LOCS") or (b) to assume all obligations of reimbursement under each Seller LOC, obtaining from the applicable creditor a full release of all parties liable, directly or indirectly, for reimbursement to the creditor in connection with amounts drawn under a Seller LOC under the existing terms of a Seller LOC. The Parent and the Purchaser further agree that is an Accelerating Lender may draw on a to the extent the beneficiary under any Seller LOC refuses to accept any such substitute letter of credit posted or Parent or Purchaser guarantee proffered by the Parent or the Purchaser, the Parent or the Purchaser shall indemnify, defend and hold harmless the Seller against and reimburse the Seller for its benefit upon demand any and all costs or expenses in connection with such Seller LOCs, including the Seller's expenses in maintaining such Seller LOCs whether or not any such Seller LOC is drawn upon, and shall in any event promptly reimburse the Seller to the applicable issuing bank (the “Requested Draw”) and extent any Seller LOC is called upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect Seller makes any payment thereunder or is obligated to such Applicable Lender). If upon receipt of reimburse the Requested Draw, party issuing the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditSeller LOC.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Pearson PLC), Stock Purchase Agreement (Viacom Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the U.S. Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Company, and to amend or extend Letters of Credit previously issued by it, in accordance with clause (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the U.S. Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Company and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (1) the Total Outstandings shall not exceed the Aggregate Commitments, (2) the Total U.S. Revolving Credit Outstandings shall not exceed the U.S. Revolving Credit Facility, (3) the aggregate Outstanding Amount of the U.S. Revolving Credit Loans of any U.S. Revolving Credit Lender, plus such U.S. Revolving Credit Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment, and (4) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the U.S. Revolving Credit Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) any U.S. Revolving Credit Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the applicable issuing bank L/C Issuer (in its sole discretion) with the “Requested Draw”Company or such U.S. Revolving Credit Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and upon receipt all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) The L/C Issuer shall act on behalf of the Advances of all Agented U.S. Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX, subject to any limitations set forth therein, with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Hain Celestial Group Inc), Credit Agreement (Hain Celestial Group Inc)
Letters of Credit. Upon notice In the event that, on or after the CAM Exchange Date, the aggregate amount of the Designated Obligations shall change as a result of the making of a US Borrower L/C Disbursement by the Issuing Lender that is not reimbursed by the US Borrower, then (i) each US Borrower L/C Participant shall pay its US Borrower Revolving Percentage of such unreimbursed US Borrower L/C Disbursement to the Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw on a letter of credit posted for its benefit upon demand to the applicable issuing bank (the “Requested Draw”) in accordance with Section 3.4, and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent will promptly pay to be applied as provided in Section 7.03(athe Issuing Lender the amounts so received by it from the US Borrower L/C Participants, (ii) (except that, solely for purposes of applying the Administrative Agent shall redetermine the CAM Percentages after giving effect to such excess, US Borrower L/C Disbursement and the references to “Lenders” in clauses Second, Third Lenders shall automatically and Fourth of such Section 7.03(a) will without further act be deemed to refer to all Lenders other than have exchanged interests in the Designated Obligations such Applicable that each Lender and any Agented Lender with respect shall own an interest equal to such Applicable Lender’s CAM Percentages (as so redetermined) in the Designated Obligations in each Class of Loans and each other category of Designated Obligations, for so long and (iii) in the event distributions shall have been made in accordance with Section 10.1(b), the Lenders shall make such payments to one another as shall be necessary in order that the Obligations amounts received by the Lenders shall be equal to the amounts they would have received had each US Borrower L/C Disbursement been outstanding on the CAM Exchange Date. Each such redetermination shall be binding on each of such the Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full)their successors and assigns and shall be conclusive, absent manifest error. In the event that any Applicable Lender is not a named beneficiary US Borrower L/C Participant shall default in its obligation to pay over any Eligible Letter of Credit because it has become a Lender subsequent amount to the issue date of such Eligible Letter of Credit or if the amount Administrative Agent in respect of any Eligible Letter of Credit needs to be adjusted US Borrower L/C Disbursement as provided in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lendersthis Section 10.2, the Loan Parties and the assigning Issuing Lender shall use commercially reasonable efforts to replace or revise have a claim against such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of same extent as if such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credithad defaulted on its obligations under Section 3.4.
Appears in 2 contracts
Samples: Credit Agreement (Dollar Financial Corp), Credit Agreement (Dollar Financial Corp)
Letters of Credit. Upon notice (a) The Letter of Credit Commitments.
(i) Subject to Administrative AgentSection 10.24(e) and the other terms and conditions set forth herein, (1) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders under the Revolving Credit Facility set forth in this Section 2.03, (x) from time to time on any Business Day following the Revolver Closing Date during the Availability Period for the Revolving Credit Facility, to issue Letters of Credit for the account of the Borrower (provided that any Letter of Credit may be for the account of any Subsidiary of the Borrower; provided, further that the Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries, and the Borrower hereby irrevocably agrees to be bound jointly and severally to reimburse the applicable L/C Issuer for amounts drawn on any Letter of Credit issued for the account of any Subsidiary) and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (y) to honor drafts under the Letters of Credit and (2) the Revolving Credit Lenders under the Revolving Credit Facility severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit and no Revolving Credit Lender shall be obligated to participate in any Letter of Credit if immediately after giving effect to such L/C Credit Extension, (w) the Total Revolving Outstandings would exceed the Revolving Credit Commitments then in effect, (x) the sum of the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, would exceed such Lender’s Revolving Credit Commitment, (y) the aggregate L/C Exposure would exceed the Letter of Credit Sublimit or (z) the aggregate L/C Exposure in respect of Letters of Credit issued by such L/C Issuer would exceed such L/C Issuer’s L/C Commitment. Letters of Credit shall constitute utilization of the Revolving Credit Commitments. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. It is an Accelerating Lender may draw on a letter hereby acknowledged and agreed that each of the letters of credit posted for its benefit upon demand to (including the applicable issuing bank Target Existing Letters of Credit) described on Schedule 2.03(a) (the “Requested DrawExisting Letters of Credit”) shall constitute a “Letter of Credit” for all purposes of this Agreement and upon receipt shall be deemed issued under this Agreement on the Term Loan Closing Date.
(ii) An L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Requested DrawL/C Issuer from issuing such Letter of Credit, apply or any such amounts Law applicable to such Applicable Lender’s Advances L/C Issuer or any directive (and whether or not having the Advances force of all Agented Lenders law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Applicable LenderLetter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Revolver Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Revolver Closing Date and which the L/C Issuer in good fxxxx xxxxx material to it;
(B) subject to Section 2.03(b)(iii). If upon receipt , the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the relevant L/C Issuer has approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Facility Expiration Date, unless the relevant L/C Issuer has approved such expiry date (it being understood that the participations of the Requested DrawRevolving Credit Lenders under the Revolving Credit Facility in any undrawn Letter of Credit shall in any event terminate on the Letter of Credit Facility Expiration Date);
(D) in the case of Letters of Credit, if such Letter of Credit is to be denominated in a currency other than Dollars or an Approved Currency; or
(E) any Revolving Lender of the amount so received applicable Class is in excess at such time a Defaulting Lender, nor shall any L/C Issuer be under any obligation to extend or amend existing Letters of Credit, unless such L/C Issuer has entered into arrangements, including reallocation of such Applicable Lender’s Applicable Percentage of the applicable outstanding L/C Obligations pursuant to Section 2.16 or the delivery of Cash Collateral, with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential L/C Exposure (and its Agented Lender’safter giving effect to Section 2.16) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long Lender arising from either the Letter of Credit then proposed to be issued or such Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential L/C Exposure; or
(F) the Obligations issuance of such Lenders Letter of Credit would violate any Laws binding upon such L/C Issuer or one or more policies of such L/C Issuer applicable to letters of credit in general;
(other than G) such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender Letter of Credit is not a named beneficiary to any Eligible standby letter of credit; or
(H) such Letter of Credit because it has become a Lender subsequent is in an initial amount less than $10,000.
(iii) An L/C Issuer shall be under no obligation to the issue date of such Eligible amend any Letter of Credit or if the amount of any Eligible (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit needs to be adjusted in amount as a result its amended form under the terms hereof, or (B) the beneficiary of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit does not accept the proposed amendment to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters Letter of Credit.
(iv) as soon as practicable after such assignment and until such placements are made, The aggregate L/C Commitments of all the assigning Lender L/C Issuers shall act as Applicable Lender for such Agented Lender with respect be less than or equal to any non-replaced or revised letter the Letter of creditCredit Sublimit at all times.
Appears in 2 contracts
Samples: Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham Hotels & Resorts, Inc.)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Applicable Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or any of its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Credit Commitments, (y) the Revolving Credit Exposure of any Revolving Credit Lender shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s and its Subsidiaries’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower and its Subsidiaries may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) No L/C Issuer shall issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (1) the Revolving Credit Lenders have otherwise agreed or (2) the Borrower has Cash Collateralized all L/C Obligations with respect to such Letter of Credit.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing the Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or the Letter of Credit in particular or shall impose upon demand such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable issuing bank on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the “Requested Draw”issuance of the Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and upon receipt such L/C Issuer, the Letter of Credit is in an initial stated amount less than the Dollar Equivalent of $100,000;
(D) except as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(E) any Revolving Credit Lender is at that time a Defaulting Lender, unless such Requested DrawL/C Issuer has entered into arrangements, apply any such amounts including the delivery of Cash Collateral, satisfactory to such Applicable LenderL/C Issuer (in its sole discretion) with the Borrower or such Revolving Credit Lender to eliminate such L/C Issuer’s Advances actual or reasonably determined potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or reasonably determined potential Fronting Exposure, as it may elect in its sole discretion; or
(F) such L/C Issuer does not as of the Advances issuance date of all Agented the requested Letter of Credit issue Letters of Credit in the requested currency.
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) Each L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and the Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying Article IX included such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $50,000;
(D) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(E) the L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency; or
(F) a default of any Lender’s obligations to fund under Section 2.03(c) exists, or any Lender is at such time an Impacted Lender, unless the L/C Issuer has entered into arrangements satisfactory to the applicable issuing bank (L/C Issuer with the “Requested Draw”) and upon receipt of any Borrower or such Requested Draw, apply any such amounts Lender to eliminate the L/C Issuer’s risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Intersil Corp/De)
Letters of Credit. (a) Subject to the terms and conditions hereof, the Issuing Lender designated by a Borrower for a specific issuance shall issue Letters of Credit hereunder denominated in Dollars or in an Alternative Currency (as designated by the Borrower) from time to time before the fifth Euro-Currency Business Day preceding the Termination Date upon such Borrower's request; provided that, immediately after each Letter of Credit is issued (i) the Total Outstanding Amount shall not exceed the aggregate amount of the Commitments and (ii) the aggregate Dollar Amount of Letter of Credit Liabilities shall not exceed $200,000,000. Upon the date of issuance by the Issuing Lender of a Letter of Credit, the Issuing Lender shall be deemed, without further action by any party hereto, to have sold to each Lender, and each Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing Lender, a participation in such Letter of Credit and the related Letter of Credit Liabilities in the proportion their respective Commitments bear to the aggregate Commitments.
(b) The Borrower shall give the Issuing Lender notice at least four Euro-Currency Business Days prior to the requested issuance of a Letter of Credit specifying the date such Letter of Credit is to be issued, the amount thereof, whether it is to be issued in Dollars or an Alternative Currency, the expiry thereof, the beneficiary thereof and the conditions to drawing thereunder (such notice, including any such notice given in connection with the extension of a Letter of Credit, a "Notice of Issuance"). Upon receipt of a Notice of Issuance, the Issuing Lender shall promptly notify the Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw on a letter of credit posted for its benefit upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes shall promptly notify each Lender of applying such excess, the references to “Lenders” in clauses Second, Third contents thereof and Fourth of the amount of such Section 7.03(a) will Lender's participation in such Letter of Credit. The issuance by the Issuing Lender of each Letter of Credit shall, in addition to the conditions precedent set forth in Article 3, be subject to the conditions precedent that such Letter of Credit shall be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender and that the Borrower shall have executed and delivered such other customary instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have reasonably requested. Each Issuing Lender hereby acknowledges that a notice period not less than 30 days for non-extension of an Evergreen Letter of Credit is satisfactory to it. The Borrower shall also pay to the Issuing Lender for its own account issuance, drawing, amendment and extension charges in the amounts and at the times as agreed between the Borrower and the Issuing Lender. The extension or renewal of any Letter of Credit shall be deemed to refer be an issuance of such Letter of Credit.
(c) No Letter of Credit shall have a term extending or be so extendible beyond the fifth Euro-Currency Business Day preceding the Termination Date. Subject to all Lenders other than the preceding sentence, each Letter of Credit issued hereunder shall expire on or before the first anniversary of the date of such Applicable Lender and issuance; provided that the expiry date of any Agented Lender with respect Letter of Credit may be extended from time to time (i) at the Borrower's request or (ii) in the case of an Evergreen Letter of Credit, automatically, in each case so long as such Applicable Lenderextension is for a period not exceeding one year and, for in the case of an Evergreen Letter of Credit, so long as the Obligations Borrower shall not have timely instructed the Issuing Lender to give notice of non-extension thereunder. Each Issuing Lender shall, upon giving such notice of non-extension, give the Borrower a copy of such Lenders notice.
(other than such Applicable Lender and d) Upon receipt from the beneficiary of any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become of any notice of a drawing under such Letter of Credit, the Issuing Lender subsequent shall notify the Administrative Agent and the Administrative Agent shall promptly notify the Borrower and each other Lender as to the issue date and amount of the payment by the Issuing Lender as a result of such demand or drawing (such date, the "Payment Date"). The Borrower shall be irrevocably and unconditionally obligated forthwith to reimburse the Issuing Lender for any amounts paid by the Issuing Lender upon any drawing under any Letter of Credit, in the currency of such payment (a "Reimbursement Obligation"), within one Euro-Dollar Business Day of the Payment Date, if the Reimbursement Obligation is denominated in Dollars, and within four Euro-Currency Business Days of the Payment Date, if the Reimbursement Obligation is denominated in an Alternative Currency (in either case, the "Reimbursement Date"), without presentment, demand, protest or other formalities of any kind. Unless the Borrower notifies the Issuing Lender on or before the Payment Date that it will otherwise make payment of such Reimbursement Obligation, the Borrower shall have been deemed to make a request for a Base Rate Loan (or a Euro-Currency Loan in an Alternative Currency if the Reimbursement Obligation is denominated in such currency) in an amount equal to such Reimbursement Obligation. All such amounts paid by the Issuing Lender shall bear interest, payable on demand, for each day from the Payment Date until paid at a rate per annum equal to (i) if such amount is denominated in Dollars, the Base Rate for such day and (ii) if such amount is denominated in an Alternative Currency, the sum of the Euro-Currency Margin plus the rate per annum at which one-day deposits in the relevant currency are offered by the principal London office of the Administrative Agent in the London interbank market for such day plus, for each day on or after the Reimbursement Date on which such amount remains unpaid, 1.00% per annum. In addition, each Lender will pay to the Administrative Agent, for the account of the Issuing Lender, immediately upon the Issuing Lender's demand at any time during the period commencing on the Payment Date until reimbursement therefor in full by the Borrower, an amount equal to such Lender's ratable share of such drawing (in proportion to its participation therein), together with interest on such amount for each day from the Payment Date to the date of payment by such Eligible Lender of such amount at a rate of interest per annum equal to the (i) if such amount is denominated in Dollars, the Federal Funds Rate and (ii) if such amount is denominated in an Alternative Currency, the rate per annum at which one-day deposits in the relevant currency are offered by the principal London office of the Administrative Agent in the London interbank market for such day. The Issuing Lender will pay to each Lender ratably all amounts received from the Borrower for application in payment of its reimbursement obligations in respect of any Letter of Credit, but only to the extent such Lender has made payment to the Issuing Lender in respect of such Letter of Credit pursuant hereto.
(e) The obligations of the Borrower and each Lender under Section 2.16(d) above shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under all circumstances whatsoever, including without limitation the following circumstances:
(i) the use which may be made of the Letter of Credit by, or any acts or omission of, a beneficiary of a Letter of Credit (or any Person for whom the beneficiary may be acting);
(ii) the existence of any claim, set-off, defense or other rights that the Borrower may have at any time against a beneficiary of a Letter of Credit (or any Person for whom the beneficiary may be acting), the Lenders (including the Issuing Lender) or any other Person, whether in connection with this Agreement or the Letter of Credit or if the amount of any Eligible document related hereto or thereto or any unrelated transaction;
(iii) any statement or any other document presented under a Letter of Credit needs proving to be adjusted forged, fraudulent or invalid in amount as any respect or any statement therein being untrue or inaccurate in any respect whatsoever;
(iv) payment under a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow the beneficiary of such Applicable Letter of Credit against presentation to the Issuing Lender of a draft or certificate that does not comply with the terms of the Letter of Credit; or
(v) any other act or omission to act or delay of any kind by any Lender (including the Issuing Lender), the Administrative Agent or any other Person or any other event or circumstance whatsoever that might, but for the provisions of this subsection (v), constitute a legal or equitable discharge of the Borrower's or the Lender's obligations hereunder.
(f) The Borrower hereby indemnifies and holds harmless each Lender (including the Issuing Lender) and the Administrative Agent from and against any and all claims, damages, losses, liabilities, costs or expenses which such Lender or the Administrative Agent may incur (including, without limitation, any claims, damages, losses, liabilities, costs or expenses which the Issuing Lender may incur by reason of or in connection with the failure of any other Lender to fulfill or comply with its obligations to such Issuing Lender hereunder (but nothing herein contained shall affect any rights the Borrower may have against such defaulting Lender)), and none of the Lenders (including the Issuing Lender) nor the Administrative Agent nor any of their officers or directors or employees or agents shall be liable or responsible, by reason of or in connection with the execution and delivery or transfer of or payment or failure to pay under any Letter of Credit, including without limitation any of the circumstances enumerated in Section 2.16(e) above, as well as (i) any error, omission, interruption or delay in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, (ii) any loss or delay in the transmission of any document required in order to make a named beneficiary thereunder drawing under a Letter of Credit, and (iii) any consequences arising from causes beyond the control of the Issuing Lender, including without limitation any government acts, or any other circumstances whatsoever in making or failing to revise make payment under such Letter of Credit; provided that the amounts Borrower shall not be required to indemnify the Issuing Lender for any claims, damages, losses, liabilities, costs or expenses, and the Borrower shall have a claim for direct (but not consequential) damage suffered by it, to the extent finally determined by a court of competent jurisdiction to have been caused by (x) the willful misconduct or gross negligence of the Issuing Lender in determining whether a request presented under any Letter of Credit complied with the terms of such Eligible Letters Letter of Credit or (y) the Issuing Lender's failure to pay under any Letter of Credit after the presentation to it of a request strictly complying with the terms and conditions of the Letter of Credit. Nothing in this subsection 2.16(f) is intended to limit the obligations of the Borrower under any other provision of this Agreement. To the extent the Borrower does not indemnify the Issuing Lender as soon as practicable after such assignment and until such placements are maderequired by this subsection, the assigning Lender shall act as Applicable Lender for such Agented Lender Lenders agree to do so ratably in accordance with respect to any non-replaced or revised letter of credittheir Commitments.
Appears in 1 contract
Samples: Credit Agreement (Praxair Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.4, (1) from time to time on any Applicable Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue a requested Letter of Credit for the account of the Borrower, and to amend or renew a Letter of Credit previously issued by such L/C Issuer, in accordance with subsection (b) below, and (2) to honor drafts under any Letter of Credit such L/C Issuer has issued; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit, to the extent that, as of the date of such L/C Credit Extension, (x) the sum of the aggregate principal amount of outstanding Revolving Loans plus the aggregate principal amount of outstanding Swingline Loans plus the L/C Obligations outstanding shall exceed the Revolving Committed Amount or (y) the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that is an Accelerating Lender have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof. Notwithstanding the foregoing, the Borrower may draw on not request any Letters of Credit hereunder while a letter Change of Control Standstill Period shall be in effect pursuant to Section 3.4(e) hereof.
(ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or such Letter of Credit in particular or shall impose upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Issuer with respect to such Applicable Lender). If Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon receipt of such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Requested Draw, Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the amount so received is in excess expiry date of such Applicable Lender’s requested Letter of Credit would occur more than eighteen (18) months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date (pursuant to additional documentation in form and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts substance satisfactory to the Administrative Agent and the applicable L/C Issuer);
(D) such Letter of Credit is in a face amount less than $100,000, in the case of a commercial Letter of Credit, or $100,000, in the case of a standby Letter of Credit, or is to be applied as provided denominated in Section 7.03(aa currency other than Dollars;
(E) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally (it being understood that each L/C Issuer acknowledges that (x) as of the Closing Date, it is not aware of any such policies that would make it impossible for the Borrower to have Letters of Credit issued hereunder for use in the ordinary course of the Borrower’s business and in accordance with its past practices and (y) it will not implement any such policies solely with the intent to deprive the Borrower of having Letters of Credit issued hereunder for use in the ordinary course of the Borrower’s business and in accordance with its past practices); or
(F) a default of any Lender’s obligations to fund under Section 7.03(a2.4(c) will be deemed exists or any Lender is at such time a Defaulting Lender or an Impacted Lender hereunder, and either (1) other Lenders shall not have assumed the obligations of such Lender, (2) the Borrower shall not have identified and procured the commitment of another Lender to refer assume the obligations of such Lender hereunder in a manner satisfactory to all Lenders other than the L/C Issuer and the Administrative Agent, or (3) the L/C Issuer has not entered into satisfactory arrangements with the Borrower or such Applicable Lender and any Agented Lender to eliminate the L/C Issuer’s risk with respect to such Applicable Lender, for so long as the Obligations of such Lenders .
(other than such Applicable Lender and iii) No L/C Issuer shall be under any Agented Lender with respect obligation to such Applicable Lender) have not been indefeasibly paid in full). In the event that amend any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent if (A) such L/C Issuer would have no obligation at such time to the issue date of such Eligible Letter of Credit in its amended form under the terms hereof, or if (B) the amount beneficiary of any Eligible such Letter of Credit needs does not accept the proposed amendment to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.
Appears in 1 contract
Samples: Credit Agreement (Autozone Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Company, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Company and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. Each of the letters of credit posted for outstanding on the date hereof and listed on Schedule 2.04 (the "Existing Letters of Credit") shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.04(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Maturity Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its benefit upon demand terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable issuing bank on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the “Requested Draw”issuance of such Letter of Credit would violate one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and upon receipt the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(D) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(E) the L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency;
(F) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(G) a default of any Lender's obligations to fund under Section 2.04(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Company or such amounts Lender to eliminate the L/C Issuer's risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender Article IX with respect to any non-replaced acts taken or revised letter omissions suffered by the L/C Issuer in connection with Letters of credit.Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term "Administrative
Appears in 1 contract
Samples: Credit Agreement (Idex Corp /De/)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) any L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders holding Revolving Commitments and Revolving Loans severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder (based on their respective Applicable Lender Percentages of the Aggregate Revolving Commitments); provided that is an Accelerating Lender may draw on after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Facility Outstandings shall not exceed the Borrowing Base, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a letter Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) An L/C Issuer shall not issue any Letter of Credit if, subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required Revolver Lenders have approved such expiry date; or the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders holding Revolving Commitments have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or such Letter of Credit in particular or shall impose upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Issuer with respect to such Applicable Lender). If Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon receipt such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $250,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provision for automatic reinstatement of the Requested Drawstated amount after any drawing thereunder; or
(F) any Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the amount so received is delivery of Cash Collateral, satisfactory to such L/C Issuer (in excess its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) An L/C Issuer shall not amend any Letter of Credit if any L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Applicable Lender’s Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) An L/C Issuer shall act on behalf of the Lenders holding Revolving Commitments with respect to any Letters of Credit issued by it and its Agented Lender’sthe documents associated therewith, and such L/C Issuer shall have all of the benefits and immunities (A) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by any L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and Article X included any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long as the Obligations of such Lenders and (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of CreditB) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender additionally provided herein with respect to any non-replaced L/C Issuer.
(vii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if the issuance of such Letter of Credit would cause (A) the aggregate amount of Letters of Credit issued by such L/C Issuer to exceed twenty percent (20%) of the Letter of Credit Sublimit or revised letter (B) the aggregate Outstanding Amount of creditthe Revolving Loans of such Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations issued by another L/C Issuer, plus 100% of the Outstanding Amount of all L/C Obligations issued by such L/C Issuer, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans made by another Lender, plus 100% of the Swing Line Loans, if any, outstanding from such L/C Issuer, to exceed such L/C Issuer’s Revolving Commitment.
Appears in 1 contract
Samples: Credit Agreement (Ryman Hospitality Properties, Inc.)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.03, (1) from time to time on any Applicable Lender Business Day during the period from the Closing Date until the L/C Expiration Date, to issue Letters of Credit for the account of Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, or (z) the Outstanding Amount of the L/C Obligations shall not exceed the L/C Sublimit. Each request by Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iv), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the L/C Expiration Date, unless all the Lenders have approved such expiry date; or
(C) such Letter of Credit is an Accelerating Lender may draw on to be used for a letter purpose other than in the ordinary course of the Borrower’s or a Subsidiary’s business, which ordinary course of business shall be deemed to include letters of credit posted for issued in support of trade arrangements (including product warranties), to support commercial insurance programs, to fund Borrower’s indemnification obligations to its benefit upon demand directors and officers or as required pursuant to the applicable issuing bank terms of the confirmed plan of reorganization in the Met-Coil Bankruptcy, unless the Required Lenders have consented thereto.
(the “Requested Draw”iii) and upon receipt The L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Requested DrawLetter of Credit, apply or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such amounts to such Applicable Lender’s Advances (and Letter of Credit in particular or shall impose upon the Advances of all Agented Lenders L/C Issuer with respect to such Applicable Lender). If Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon receipt the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit xxxxx xxxxxte any Laws or one or more policies of the Requested DrawL/C Issuer;
(C) except as otherwise agreed by Agent and the L/C Issuer, the amount so received such Letter of Credit is in excess an initial face amount less than $100,000, in the case of a commercial Letter of Credit, or $200,000, in the case of a standby Letter of Credit;
(D) such Applicable Letter of Credit is to be denominated in a currency other than Dollars;
(E) a default of any Lender’s (and its Agented Lender’sobligations to fund under Section 2.03(c) Advances (exists or other Obligations then due and owing any Lender is at such Lenders)time a Defaulting Lender hereunder, pay any unless the L/C Issuer has entered into satisfactory arrangements with Borrower or such excess amounts Lender to eliminate the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer’s risk with respect to such Applicable Lender, for so long as the Obligations of ; or
(F) such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to contains any provisions for automatic reinstatement of the issue date of such Eligible stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit or if the amount of any Eligible L/C Issuer would not be permitted at such time to issue such Letter of Credit needs in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to allow issue such Applicable Lender to be a named Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary thereunder (or to revise the amounts of such Eligible Letters Letter of Credit does not accept the proposed amendment to such Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.
Appears in 1 contract
Samples: Credit Agreement (Mestek Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.05, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of Borrower or its Subsidiaries (other than Inactive Subsidiaries), and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of Borrower or its Subsidiaries (other than Inactive Subsidiaries) and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Loan Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender, plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Revolving Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) Borrower agrees that the L/C Issuer shall not issue any Letter of Credit, if subject to Section 2.05(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or the last extension, unless the Required Revolving Lenders have approved such expiry date; provided, that, notwithstanding any other provision of this Agreement or the other Loan Documents, any Applicable Lender Letter of Credit that is has an Accelerating Lender may draw on a letter expiry date after the Revolving Loan Maturity Date shall be Cash Collateralized by Borrower no later than the Revolving Loan Maturity Date; provided further, that the expiry date of any Letter of Credit shall not occur more than twelve months after the Letter of Credit Expiration Date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(1) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or the Letter of Credit in particular or shall impose upon demand the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable issuing bank on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(2) the “Requested Draw”issuance of the Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(3) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (except as otherwise agreed by the Administrative Agent and the Advances L/C Issuer, the Letter of Credit is in an initial stated amount less than $50,000, in the case of a commercial Letter of Credit, or $50,000, in the case of a standby Letter of Credit;
(4) the Letter of Credit is to be denominated in a currency other than Dollars; or
(5) any Revolving Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with Borrower or such Revolving Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all Agented other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (RealD Inc.)
Letters of Credit. Upon notice to Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw on a letter (a) The Letter of credit posted for its benefit upon demand Credit Commitment.
(i) Subject to the applicable issuing bank terms and conditions set forth herein, the Lender agrees (A) from time to time on any Business Day during the “Requested Draw”period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or a Subsidiary specified by the Borrower, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and upon receipt (B) to honor drafts under the Letters of Credit; provided that the Lender shall not be obligated to make any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Credit Extension with respect to such Applicable Lender). If upon receipt any Letter of Credit if as of the Requested Draw, the amount so received is in excess date of such Applicable Lender’s L/C Credit Extension, (and its Agented Lender’sy) Advances the Total Outstandings would exceed the Commitment or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes amendment of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth a Letter of such Section 7.03(a) will Credit shall be deemed to refer be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso of the preceding sentence. Within the foregoing limits, and subject to all Lenders other than the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The Lender shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Lender from issuing such Applicable Letter of Credit, or any Law applicable to the Lender and or any Agented request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Lender shall prohibit, or request that the Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Lender with respect to such Applicable LenderLetter of Credit any restriction, reserve or capital requirement (for so long as which the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Lender any unreimbursed loss, cost or expense that was not applicable on the Closing Date and that the Lender in good xxxxx xxxxx material to any Eligible it;
(B) subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit because it has become a Lender subsequent to would occur more than twelve months after the issue date of issuance or last extension;
(C) the expiry date of such Eligible requested Letter of Credit or if would occur after the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters Expiration Date (unless the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible requested Letter of Credit to allow will be Cash Collateralized);
(D) the issuance of such Applicable Lender Letter of Credit would violate one or more policies of the Lender; or
(E) such Letter of Credit is in an initial amount less than $100,000, or is to be used for a named purpose other than general corporate purposes of the Borrower and its Subsidiaries or is to be denominated in a currency other than Dollars.
(iii) The Lender shall be under no obligation to amend any Letter of Credit if (A) the Lender would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary thereunder (or to revise the amounts of such Eligible Letters Letter of Credit does not accept the proposed amendment to such Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings at such time shall not exceed the Revolving Credit Facility at such time, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Applicable Lender Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations at such time shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the applicable issuing bank issuance of such Letter of Credit would violate one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the “Requested Draw”Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) and upon receipt such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Revolving Credit Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such amounts Lender to eliminate the L/C Issuer’s risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Genpact LTD)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the L/C Expiration Date, to issue Letters of Credit denominated in Dollars or Canadian Dollars for the account of Borrowers, and to amend or extend Letters of Credit previously issued by it, in accordance with clause (b) below, and (2) to honor drawings under the Letters of Credit; and (B) Lenders severally agree to participate in Letters of Credit issued for the account of Borrowers and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Lender’s Commitment, or (z) the Outstanding Amount of the L/C Obligations shall not exceed the L/C Sublimit. Each request by Borrowers for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by Borrowers that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iv), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the L/C Expiration Date, unless all Lenders have approved such expiry date.
(iii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable issuing bank to letters of credit generally;
(C) except as otherwise agreed by Agent and the “Requested Draw”L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000;
(D) and upon receipt such Letter of Credit is to be denominated in a currency other than Dollars or Canadian Dollars;
(E) the L/C Issuer does not as of the issuance date of any requested Canadian Dollar Letter of Credit issue Letters of Credit in Canadian Dollars;
(F) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such Requested Drawtime an Impacted Lender hereunder, apply any unless the L/C Issuer has entered into arrangements satisfactory to it with Borrowers or such amounts Impacted Lender to eliminate the L/C Issuer’s risk with respect to such Applicable Impacted Lender, including by providing cash collateral or similar security in support of such Impacted Lender’s Advances Applicable Percentage of the L/C Obligations; or
(and G) unless specifically provided for in this Agreement, such Letter of Credit contains any provisions for automatic reinstatement of the Advances stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of all Agented Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, benefits and immunities (A) provided to Agent in Article 9 with respect to any acts taken or omissions suffered by the amount so received is L/C Issuer in excess connection with Letters of such Applicable Lender’s (and its Agented Lender’s) Advances (Credit issued by it or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” or “Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article 9 included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of Borrowers delivered to the L/C Issuer (with a copy to Agent) in the form of a L/C Application, appropriately completed and signed by a Responsible Officer of Borrowers. Such L/C Application must be received by the L/C Issuer and Agent not later than 11:00 a.m. at least two Business Days (or such Applicable Lenderlater date and time as Agent and the L/C Issuer may agree in a particular instance in their sole discretion) have not been indefeasibly paid in full)prior to the proposed issuance date or date of amendment, as the case may be. In the event that any Applicable Lender is not case of a named beneficiary request for an initial issuance of a Letter of Credit, such L/C Application shall specify in form and detail satisfactory to any Eligible the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit because it has become (which shall be a Lender subsequent Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such L/C Application shall specify in form and detail satisfactory to the issue L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such Eligible other matters as the L/C Issuer may require. Additionally, Borrowers shall furnish to the L/C Issuer and Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or Agent may require.
(ii) Promptly after receipt of any L/C Application at the address set forth in Section 10.02 for receiving L/C Applications and related correspondence, the L/C Issuer will confirm with Agent (by telephone or in writing) that Agent has received a copy of such L/C Application from Borrowers and, if not, the L/C Issuer will provide Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions in Article 4 shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of Borrowers or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or if the amount of any Eligible Letter of Credit needs amendment to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (an advising bank with respect thereto or to revise the amounts beneficiary thereof, the L/C Issuer will also deliver to Borrowers and Agent a true and complete copy of such Eligible Letters Letter of Credit or amendment.
(iv) If Borrowers so request in any applicable L/C Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, Borrowers shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the L/C Expiration Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as soon extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Extension Notice Date (1) from Agent that the Required Lenders have elected not to permit such extension or (2) from Agent, any Lender or Borrowers that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(v) If Borrowers so request in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by the L/C Issuer, Borrowers shall not be required to make a specific request to the L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as practicable provided in the following sentence, Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such assignment and until such placements are madedrawing (the “Non-Reinstatement Deadline”), the assigning L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Reinstatement Deadline (A) from Agent that the Required Lenders have elected not to permit such reinstatement or (B) from Agent, any Lender shall act or Borrowers that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as Applicable Lender an L/C Credit Extension for purposes of this clause) and, in each case, directing the L/C Issuer not to permit such Agented Lender with respect to any non-replaced or revised letter of creditreinstatement.
(c) Drawings and Reimbursements;
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrowers or their Subsidiaries, and to amend Letters of Credit previously issued by it, in accordance with Section 2.03(b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrowers or their Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Revolving Credit Lender, plus such Revolving Credit Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrowers for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and, accordingly, the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be Letters of Credit hereunder subject to and governed by the terms and conditions hereof.
(ii) No L/C Issuer shall issue any Letter of Credit if the expiry date of such requested Letter of Credit would occur more than 12 months after the Revolving Credit Maturity Date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars; or
(E) a default of any Revolving Credit Lender’s obligations to fund under Section 2.03(c) exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder and such Defaulting Lender’s obligations to acquire a participation in such Letter of Credit cannot be reallocated, or can only be partially reallocated, among the non-Defaulting Lenders that are Revolving Credit Lenders in accordance with Section 2.15(a)(iv), unless such L/C Issuer has entered into arrangements mutually satisfactory to such L/C Issuer, Administrative Agent and Borrowers to eliminate such L/C Issuer’s risk with respect to such Revolving Credit Lender (which arrangements may include the providing of Cash Collateral in relation to the applicable issuing bank Borrowers’ obligations to pay any Unreimbursed Amounts in respect of such defaulting Revolving Credit Lender’s or Defaulting Lender’s participation in such Letter of Credit after giving effect to any partial reallocation pursuant to Section 2.15(a)(iv)).
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the “Requested Draw”terms hereof.
(v) and upon receipt No L/C Issuer shall be under any obligation to amend any Letter of any Credit if (A) such Requested DrawL/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) Each L/C Issuer shall act on behalf of the Advances of all Agented Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and such Applicable Lender). If upon receipt L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying Article IX included such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Aimco Properties L.P.)
Letters of Credit. Upon notice to Administrative Agent(a) Provided that the Borrower is in compliance with all of the terms and conditions for the making of Loans by the Lenders, any Applicable Lender that is an Accelerating Lender may draw on a letter of credit posted for its benefit upon demand and subject to the applicable issuing bank terms and conditions herein set forth, the Borrower shall have the right to request, through a Letter of Credit Request pursuant to Section 2.2(b), the Issuing Lender to deliver from time to time Letters of Credit, and the Issuing Lender shall promptly upon such request issue the requested Letter of Credit, each of which shall be in a form approved by the Issuing Lender; provided that (i) the “Requested Draw”maximum Letter of Credit Liability at any one time outstanding shall not exceed $100,000, (ii) such Letter of Credit shall have a maturity not greater than the Scheduled Maturity Date and (iii) such Letter of Credit shall not contain automatic renewal or "evergreen" provisions. Each drawing under a Letter of Credit shall be payable in full upon receipt the date thereof by the Borrower, without notice or demand of any such Requested Draw, apply any such amounts kind. Subject to such Applicable Lender’s Advances (the terms and the Advances of all Agented Lenders with respect conditions otherwise applicable to such Applicable Lender). If upon receipt advances of the Requested DrawLoans hereunder, the Borrower may request a Loan hereunder to be used to reimburse the Issuing Lender for the amount so received is in excess drawn. The liability of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess the Borrower to reimburse the Issuing Lender for the amounts to drawn under Letters of Credit shall be included within the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely term "Loan" for all purposes of applying such excessthis Agreement, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for amounts so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly drawn shall bear interest until paid in fullfull (whether out of the proceeds of a Loan otherwise permitted hereunder or otherwise) at the Base Rate, subject to Section 2.6(b). In The Borrower's obligation to reimburse the event that Issuing Lender for any Applicable Lender is not a named beneficiary to and all amounts drawn under any Eligible Letter of Credit because it has become a Lender subsequent and all interest thereon shall be secured by the Collateral. The Borrower's obligations to repay any and all drawings under any Letter of Credit and any and all other amounts payable to the issue date Issuing Lender, the Agent or any other Lender hereunder shall be absolute, irrevocable and unconditional under any and all circumstances whatsoever and irrespective of any set-off, counterclaim or defense to payment which the Borrower may have or have had against the Issuing Lender, the Agent or any other Lender (except such as may arise out of the Issuing Lender's, the Agent's or any other Lender's gross negligence or willful misconduct hereunder) or any other Person, including, any setoff, counterclaim or defense based upon or arising out of:
(A) Any lack of validity or enforceability of this Agreement or any of the other Loan Documents or such Letter of Credit;
(B) Any amendment or waiver of or any consent to or departure from the terms of the Loan Documents or such Letter of Credit;
(C) The existence of any claim, setoff, defense or other right which the Borrower or any other Person may have at any time against any beneficiary or any transferee of such Eligible Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuing Lender, the Agent or any other Lender or any other Person, whether in connection with such Letter of Credit, the Loan Documents or any unrelated transaction;
(D) Any demand, statement 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 whatsoever or any variations in punctuation, capitalization, spelling or format of the drafts or any statements presented in connection with any drawing under such Letter of Credit;
(E) The surrender or impairment of any security for the performance or observance of any of the terms of such Letter of Credit or the Loan Documents; and
(F) The failure, for any reason, of any Lender to fund advances to the Borrower hereunder for any purpose. Nothing contained herein shall constitute a waiver of any rights or remedies of the Borrower against the Issuing Lender, the Agent or any other Lender arising out of the gross negligence or willful misconduct of the Issuing Lender, the Agent or any such other Lender.
(b) Whenever the Borrower desires the issuance of a Letter of Credit, it shall deliver to the Agent and the Issuing Lender a written notice in substantially the form attached hereto as Exhibit H (a "Letter of Credit Request") no later than 10:00 A.M. California time at least three Business Days prior to the proposed date of issuance. Such Letter of Credit Request shall specify (i) the proposed date of issuance (which shall be a Business Day under the laws of the jurisdiction of the Issuing Lender), (ii) the face amount of the Letter of Credit, which shall not be less than $50,000, (iii) the expiration date of the Letter of Credit, which shall not exceed the Business Day prior to the Scheduled Maturity Date, (iv) the name and address of the beneficiary of the Letter of Credit, and (v) 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 expiration date of such Letter of Credit, would require the Issuing Lender to make payments under the Letter of Credit (provided that the Issuing Lender, in its sole discretion, may require changes in any such documents and certificates). The Issuing Lender shall notify the Agent of the issuance of each Letter of Credit promptly following the issuance thereof. Promptly after receipt of notice of the issuance of a Letter of Credit, the Agent shall notify each Lender and the Borrower of the issuance thereof and the amount of each Lender's respective participation therein.
(c) The payment of drafts under any Eligible Letter of Credit needs to shall be adjusted made in amount as a result accordance with the terms of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit and, in that connection, the Issuing Lender shall be entitled to allow honor any drafts and accept any documents presented to it by the beneficiary of such Applicable Letter of Credit in accordance with the terms of such Letter of Credit and believed by the Issuing Lender to be genuine. The Issuing Lender shall not have any duty to the Borrower or any Lender 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 which are required to be presented before payment or acceptance of a named beneficiary thereunder (or to revise draft under any Letter of Credit have been delivered and that they comply on their face with the amounts requirements of such Eligible Letters that Letter of Credit.
(d) as soon as practicable after such assignment and until such placements are madeThe Borrower, the assigning Lenders, each Issuing Lender shall act as Applicable and the Agent agree that, in the event that an Issuing Lender for such Agented Lender with respect and the Borrower enter into any letter of credit application or agreement in relation to any non-replaced or revised letter Letter of creditCredit which contains provisions that are inconsistent with the express provisions of this Section 2.2, then the provisions of this Section 2.2 shall be controlling.
Appears in 1 contract
Samples: Debtor in Possession Revolving Credit and Guaranty Agreement (BMJ Medical Management Inc)
Letters of Credit. Upon (a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein: (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03,2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with paragraph (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided, however, that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swingline Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.032.04(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of the Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars; or
(E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.152.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C Issuer may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the L/C Issuer may require. Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably request.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or the Borrower, at least one (1) Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided, however, that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.032.04(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension, or (2) from the Administrative Agent, any Applicable Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and, in each such case, directing the L/C Issuer not to permit such extension.
(iv) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an Accelerating Lender may draw on “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a letter of credit posted for its benefit upon demand specific request to the applicable issuing bank L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto- Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “Requested DrawNon-Reinstatement Deadline”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is in excess of such Applicable Lender’s seven (and its Agented Lender’s7) Advances Business Days before the Non-Reinstatement Deadline (or other Obligations then due and owing such Lenders), pay any such excess amounts to A) from the Administrative Agent that the Required Lenders have elected not to be applied as provided permit such reinstatement, or (B) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 7.03(a) 4.02 is not then satisfied (except that, solely treating such reinstatement as an L/C Credit Extension for purposes of applying this clause) and, in each case, directing the L/C Issuer not to permit such excess, the references to “Lenders” in clauses Second, Third and Fourth reinstatement.
(v) Promptly after its delivery of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs amendment to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (an advising bank with respect thereto or to revise the amounts beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Eligible Letters Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced Credit or revised letter of creditamendment.
Appears in 1 contract
Samples: Credit Agreement (Meredith Corp)
Letters of Credit. Upon notice to Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw on a letter of credit posted for its benefit upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible The Letter of Credit because it has become a Lender subsequent Commitment. Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the L/C Expiration Date, to issue date of such Eligible Letter Letters of Credit for the account of Borrower or if the amount of any Eligible Letter its Subsidiaries, and to amend or extend Letters of Credit needs previously issued by it, in accordance with subsection (b) below, and (2) to be adjusted in amount as a result of an assignment among Lenders that alters honor drawings under the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit; and (B) as soon as practicable the Lenders severally agree to participate in Letters of Credit issued for the account of Borrower or its Subsidiaries and any drawings thereunder; provided that after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender giving effect to any L/C Credit Extension with respect to any non-replaced Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Commitment, or revised letter (z) the Outstanding Amount of creditthe L/C Obligations shall not exceed the L/C Sublimit. Each request by Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. The L/C Issuer shall not issue any Letter of Credit, if: subject to Section 2.03(b)(iv), the expiration date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or the expiry date of such requested Letter of Credit would occur after the L/C Expiration Date, unless all the Lenders have approved such expiry date.
Appears in 1 contract
Samples: Revolving Credit Agreement (Green Mountain Coffee Roasters Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless all of the Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the applicable issuing bank L/C Issuer (in its sole discretion) with the “Requested Draw”Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and upon receipt all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) The L/C Issuer shall act on behalf of the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Applicable Lender Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) No L/C Issuer shall issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $50,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) any Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, reasonably satisfactory to such L/C Issuer with the Borrower or such Defaulting Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.18(a)(iv)) with respect to the applicable issuing bank Defaulting Lender arising from such Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which any L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the “Requested Draw”terms hereof.
(v) and upon receipt No L/C Issuer shall be under any obligation to amend any Letter of any Credit if (A) such Requested DrawL/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) Each L/C Issuer shall act on behalf of the Advances of all Agented Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying Article IX included such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuers.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue standby Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable issuing bank to letters of credit generally;
(C) except as otherwise agreed by the “Requested Draw”Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $50,000;
(D) and upon receipt such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such amounts Lender to eliminate the L/C Issuer’s risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. (a) Upon the terms and subject to the conditions herein set forth, the Borrower may request a Fronting Bank, at any time and from time to time after the date hereof and prior to the Termination Date, to issue, and, subject to the terms and conditions contained herein, such Fronting Bank shall issue, for the account of the Borrower or a Guarantor one or more Letters of Credit, provided that no Letter of Credit shall be issued if after giving effect to such issuance (i) the aggregate Letter of Credit Outstandings shall exceed $15,000,000 or (ii) the aggregate Letter of Credit Outstandings, when added to the aggregate outstanding principal amount of the Loans, would exceed the Total Commitment and, provided further, that no Letter of Credit shall be issued if the Fronting -------- ------- Bank shall have received notice from the Agent or the Required Banks that the conditions to Administrative Agentsuch issuance set forth herein and any other documentation relating to such Letter of Credit have not been met.
(b) deposit in the Letter of Credit Account) as collateral security for the Borrower's reimbursement obligations in connection therewith, any Applicable Lender that is an Accelerating Lender may draw on a such cash to be promptly remitted to the Borrower upon the expiration, cancellation or other termination or satisfaction of such reimbursement obligations.
(c) The Borrower shall pay to each Fronting Bank, in addition to such other fees and charges as are specifically provided for in Section 2.21 hereof, such fees and charges in connection with the issuance and processing of the Letters of Credit issued by such Fronting Bank as are customarily imposed by such Fronting Bank from time to time in connection with letter of credit posted for its benefit upon demand transactions.
(d) Drafts drawn under each Letter of Credit shall be reimbursed by the Borrower in Dollars not later than the first Business Day following the date of draw and shall bear interest from the date of draw until the first Business Day following the date of draw at a rate per annum equal to the Alternate Base Rate plus 2.0% and thereafter on the unreimbursed portion until reimbursed in ---- full at a rate per annum equal to the Alternate Base Rate plus 4.0% (computed on ---- the basis of the actual number of days elapsed over a year of 365 days or 366 days in a leap year). The Borrower shall effect such reimbursement (x) if such draw occurs prior to the Termination Date, in cash or through a Borrowing without the satisfaction of the conditions precedent set forth in Section 4.02 or (y) if such draw occurs on or after the Termination Date, in cash. Each Bank agrees to make the Loans described in clause (x) of the preceding sentence notwithstanding a failure to satisfy the applicable issuing bank lending conditions thereto or the provisions of Sections 2.02 or 2.28.
(e) Immediately upon the “Requested Draw”) and upon receipt issuance of any Letter of Credit by any Fronting Bank, such Requested DrawFronting Bank shall be deemed to have sold to each Bank other than such Fronting Bank and each such other Bank shall be deemed unconditionally and irrevocably to have purchased from such Fronting Bank, apply any without recourse or warranty, an undivided interest and participation, to the extent of such amounts to Bank's Commitment Percentage, in such Applicable Lender’s Advances (Letter of Credit, each drawing thereunder and the Advances obligations of all Agented Lenders the Borrower and the Guarantors under this Agreement with respect thereto. Upon any change in the Commitments pursuant to Section 10.03, it is hereby agreed that with respect to such Applicable Lender). If upon receipt all Letter of Credit Outstandings, there shall be an automatic adjustment to the participations hereby created to reflect the new Commitment Percentages of the Requested Drawassigning and assignee Banks. Any action taken or omitted by a Fronting Bank under or in connection with a Letter of Credit, if taken or omitted in the amount so received is in excess absence of gross negligence or willful misconduct, shall not create for such Applicable Lender’s Fronting Bank any resulting liability to any other Bank.
(and its Agented Lender’sf) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that a Fronting Bank makes any Applicable Lender is not a named beneficiary to payment under any Eligible Letter of Credit because it has become a Lender subsequent and the Borrower shall not have reimbursed such amount in full to such Fronting Bank pursuant to this Section, the Fronting Bank shall promptly notify the Agent, which shall promptly notify each Bank of such failure, and each Bank shall promptly and unconditionally pay to the issue date Agent for the account of the Fronting Bank the amount of such Eligible Bank's Commitment Percentage of such unreimbursed payment in Dollars and in same day funds. If the Fronting Bank so notifies the Agent, and the Agent so notifies the Banks prior to 11:00 a.m. (Charlotte, North Carolina) on any Business Day, such Banks shall make available to the Fronting Bank such Bank's Commitment Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Bank shall not have so made its Commitment Percentage of the amount of such payment available to the Fronting Bank, such Bank agrees to pay to such Fronting Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Agent for the account of such Fronting Bank at the Federal Funds Effective Rate. The failure of any Bank to make available to the Fronting Bank its Commitment Percentage of any payment under any Letter of Credit or if shall not relieve any other Bank of its obligation hereunder to make available to the amount Fronting Bank its Commitment Percentage of any Eligible payment under any Letter of Credit needs on the date required, as specified above, but no Bank shall be responsible for the failure of any other Bank to be adjusted make available to such Fronting Bank such other Bank's Commitment Percentage of any such payment. Whenever a Fronting Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Banks pursuant to this paragraph, such Fronting Bank shall pay to each Bank which has paid its Commitment Percentage thereof, in Dollars and in same day funds, an amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts equal to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditBank's Commitment Percentage thereof.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Galey & Lord Inc)
Letters of Credit. Upon (a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good fxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(D) such Letter of Credit is to be denominated in a currency other than Dollars; or
(E) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into reasonably satisfactory arrangements with the Borrower or such Lender to eliminate the L/C Issuer’s risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require. Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Applicable Lender or the Borrower that is an Accelerating Lender may draw on a letter one or more of credit posted for its benefit upon demand to the applicable issuing bank conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(the “Requested Draw”iv) and upon receipt Promptly after its delivery of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs amendment to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (an advising bank with respect thereto or to revise the amounts beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Eligible Letters Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced Credit or revised letter of creditamendment.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) Subject to Section 2.04(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense that was not applicable on the Closing Date and that the L/C Issuer in good faith deems material to it;
(B) xxxxxx xx xtherwise agreed by the applicable issuing bank Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000;
(C) such Letter of Credit is to be denominated in a currency other than Dollars;
(D) such Letter of Credit contains any provisions for automatic reinstatement of the “Requested Draw”stated amount after any drawing thereunder; or
(E) and upon receipt a default of any Lender's obligations to fund under Section 2.04(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such amounts Lender to eliminate the L/C Issuer's risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term "Administrative Agent" as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Bright Horizons Family Solutions Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Company or any Designated Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit issued by it; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Company or any Designated Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date;
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date; or
(C) such Letter of Credit is an Accelerating Lender may draw on to be denominated in a letter currency other than Dollars.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial face amount less than $500,000;
(D) such Letter of Credit contains any provisions for automatic reinstatement of the face amount after any drawing thereunder (an “Auto-Reinstatement Letter of Credit”); or
(E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the applicable issuing bank L/C Issuer (in its sole discretion) with the “Requested Draw”Company or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and upon receipt all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The L/C Issuer shall not amend any Letter of Credit issued by it if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) The L/C Issuer shall act on behalf of the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Avnet Inc)
Letters of Credit. Upon notice In addition to Administrative AgentBorrowers requesting that Lenders make DIP/Bridge Loans pursuant to subsection 2.1A(i)(a) and that DIP Swing Line Lender makes DIP Swing Line Loans pursuant to subsection 2.1A(ii), Borrowers may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Closing Date to but excluding the date which is (x) the fifth Business Day prior to the Commitment Termination Date (in the case of Standby Letters of Credit) and (y) the thirtieth Business Day prior to the Commitment Termination Date (in the case of Commercial Letters of Credit), that one or more Lenders issue Letters of Credit payable on a sight basis for the account of such Borrower for the purposes specified in the definitions of Commercial Letters of Credit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Borrowers set forth herein, any Applicable Lender that is an Accelerating Lender may draw on a letter of credit posted for its benefit upon demand to the applicable issuing bank one or more Lenders may, but (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied except as provided in Section 7.03(asubsection 3.1B(ii)) (except thatshall not be obligated to, solely for purposes issue such Letters of applying such excess, Credit in accordance with the references to “Lenders” in clauses Second, Third and Fourth provisions of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have this subsection 3.1; PROVIDED that Borrowers shall not been indefeasibly paid in full). In the event request that any Applicable Lenders issue (and no Lender is not a named beneficiary to shall issue):
(i) any Eligible Letter of Credit because if, after giving effect to such issuance, (1) the Total Utilization of Commitments for all Borrowers would exceed (x) the Maximum DIP/Bridge Loan Commitments for all Borrowers then in effect or (y) the Borrowing Base for all Borrowers then in effect, or (2) the Total Utilization of Commitments for any Borrower would exceed the Maximum DIP/Bridge Loan Commitments for such Borrower then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, (1) the Letter of Credit Usage of any Borrower would exceed the Letters of Credit Suballocation for such Borrower then in effect, and (2) the Letter of Credit Usage for all Borrowers would exceed the lesser of (x) $20,000,000 and (y) the Maximum DIP/Bridge Loan Commitment then effect;
(iii) any Letter of Credit to Company if, after giving effect to such issuance, the Letter of Credit Usage of Company would exceed (x) $20,000,000 LESS (y) the Letter of Credit Usage of Xxxx UK, Xxxx France and Xxxx Japan;
(iv) any Standby Letter of Credit having an expiration date later than the earlier of (a) the date which is five Business Days prior to the Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; PROVIDED that the immediately preceding clause (b) shall not prevent any Issuing Lender from agreeing that a Standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each unless such Issuing Lender elects not to extend for any such additional period; and PROVIDED FURTHER that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has become a knowledge that an Event of Default has occurred and is continuing (and has not been waived in accordance with subsection 10.6) at the time such Issuing Lender subsequent must elect whether or not to allow such extension; or
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (X) the date which is thirty Business Days prior to the issue Revolving Commitment Termination Date and (Y) the date which is 180 days from the date of issuance of such Eligible Commercial Letter of Credit or if (b) that is otherwise unacceptable to the amount of any Eligible Letter of Credit needs to be adjusted applicable Issuing Lender in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially its reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditdiscretion.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Goss Graphic Systems Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Funding Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrowers and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrowers and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Applicable Lender Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrowers for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Funding Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Funding Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good fxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable issuing bank to letters of credit generally;
(C) except as otherwise agreed by the “Requested Draw”Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000;
(D) and upon receipt such Letter of Credit is to be denominated in a currency other than Dollars; or
(E) a default of any Revolving Credit Lender’s obligations to fund under Section 2.03(c) exists or any Revolving Credit Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrowers or such amounts Revolving Credit Lender to eliminate the L/C Issuer’s risk with respect to such Applicable Revolving Credit Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Applicable Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (x) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving Commitment, (y) the Outstanding Revolving Amount of the L/C Obligations of any L/C Issuer shall not exceed such L/C Issuer’s L/C Commitment and (z) the Outstanding Revolver Amount of all L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) A L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) subject to clause (vii) below, the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date.
(iii) L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain a letter L/C Issuer from issuing such Letter of Credit, or any Law applicable to a L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over a L/C Issuer shall prohibit, or request that a L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon a L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which a L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon a L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which a L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of a L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and a L/C Issuer, such Letter of Credit is in an initial stated amount less than $50,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars; or
(E) any Lender is at that time a Defaulting Lender, unless a L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, reasonably satisfactory to a L/C Issuer (in its benefit upon demand sole discretion) with the Borrower or such Lender to eliminate a L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the applicable issuing bank Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which a L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) L/C Issuer shall not amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the “Requested Draw”Letter of Credit in its amended form under the terms hereof.
(v) and upon receipt A L/C Issuer shall be under no obligation to amend any Letter of any Credit if (A) such Requested DrawL/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) A L/C Issuer shall act on behalf of the Advances of all Agented Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and such Applicable Lender). If upon receipt L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying Article X included such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable LenderL/C Issuer.
(vii) have not been indefeasibly paid Notwithstanding the foregoing, a L/C Issuer, will, if requested by the Borrower, issue one or more Letters of Credit hereunder, with expiry dates no later than twelve months after the Letter of Credit Expiration Date, based upon the Borrower’s agreement to provide Cash Collateral (in fullthe full amount of such Letters of Credit and all obligations related thereto) to such L/C Issuer (or, if agreed upon, the Administrative Agent) relating to such Letters of Credit on or before the Letter of Credit Expiration Date in accordance with the terms of Section 2.14 and subject to documentation satisfactory to such L/C Issuer or the Administrative Agent, as applicable (and, upon receipt of such Cash Collateral by a L/C Issuer or the Administrative Agent, as applicable, the Lenders’ participation interests in such Letters of Credit shall terminate on the Revolving Maturity Date). In the event that any Applicable Lender is not a named beneficiary the Borrower fails to any Eligible Cash Collateralize the outstanding Letter of Credit because it has become a Lender subsequent to exposure on the issue date of such Eligible Letter of Credit or if the amount of any Eligible Expiration Date, each outstanding Letter of Credit needs shall automatically be deemed to be adjusted drawn in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lendersfull, the Loan Parties and the assigning Lender Borrower shall use commercially reasonable efforts be deemed to replace or revise such Eligible have requested a Base Rate Loan to be funded by the Lenders on the Letter of Credit Expiration Date to allow reimburse such Applicable Lender to be a named beneficiary thereunder drawing (or to revise with the amounts proceeds of such Eligible Base Rate Loan being used to Cash Collateralize outstanding Letter of Credit exposure as set forth in Section 2.14) in accordance with the provisions of Section 2.03(c). The funding by a Lender of its Applicable Percentage of such Base Rate Loan, to Cash Collateralize the outstanding Letter of Credit exposure on the Letter of Credit Expiration Date shall be deemed payment by such Lender in respect of its participation interest in such Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrowers, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrowers and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Outstandings shall not exceed the Aggregate Commitments, (x) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit, and (z) the Total Outstandings of the PR Borrowers shall not exceed the PR Borrowing Limit. Each request by SEI, whether for itself or any other Borrower, for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the applicable issuing bank L/C Issuer (in its sole discretion) with the “Requested Draw”Borrowers or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.19(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and upon receipt all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) The L/C Issuer shall act on behalf of the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Closing Date and prior to the L/C Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Article 3, to issue from time to time from the Closing Date through the L/C Facility Maturity Date for the account of any Borrower (or, so long as a Borrower is the primary obligor, for the account of Holdings or any Restricted Subsidiary (other than a Restricted Subsidiary that is a Borrower)) letters of credit or bank guarantees in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures with respect to the Revolving Credit Commitments and Revolving Credit Loans at the time of the issuance thereof to exceed the Revolving Credit Line Cap then in effect; (iii) no Letter of Credit shall be issued for the account of CGI Borrower the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures to CGI Borrower with respect to Revolving Credit Commitments and Revolving Credit Loans at the time of the issuance thereof to exceed the CGI Line Cap then in effect; (iv) no Letter of Credit shall be issued for the account of Swiss Borrower the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures to Swiss Borrower with respect to Revolving Credit Commitments and Revolving Credit Loans at the time of the issuance thereof to exceed the Swiss Line Cap then in effect; (v) no Letter of Credit shall be issued in an Alternative Currency, the Stated Amount of which in the Equivalent Amount in Dollars, when added to the Letters of Credit Outstanding in all such Alternative Currencies at such time would exceed the Letter of Credit Sub-Commitment then in effect; (vi) unless otherwise agreed to by the Letter of Credit Issuer and the Administrative Agent, each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof (except with respect to trade or commercial Letters of Credit, which may have an expiration date occurring no later than 180 days after the date of issuance thereof, or as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, the Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized, the Lenders; (vii) no Letter of Credit shall be issued if it would be illegal under any Applicable Lender applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viii) no Letter of Credit shall be issued by the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Lenders stating that a Default or Event of Default has occurred and is an Accelerating Lender may draw continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 14.1.
(c) Upon at least two (2) Business Days’ prior written notice to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrowers shall have the right, on a letter any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment and the Letters of Credit Outstanding issued in Alternative Currencies shall not exceed the Equivalent Amount in Dollars of the Letter of Credit Sub-Commitment.
(d) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for its benefit which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $50,000, U.S.$50,000, €50,000 or £50,000, in the case of a commercial Letter of Credit, or $10,000, U.S.$10,000, €10,000 or £50,000, in the case of a standby Letter of Credit;
(iv) unless otherwise agreed by the Administrative Agent and the Letter of Credit Issuer in accordance with Section 2.16, such Letter of Credit is denominated in a currency other than Dollars, U.S. Dollars, Euros or Pounds Sterling;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vi) a default of any Lender’s obligations to fund under Section 3.3 exists or any Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrowers have entered into arrangements reasonably satisfactory to the applicable issuing bank Letter of Credit Issuer to eliminate the Letter of Credit Issuer’s risk with respect to such Lender or such risk has been reallocated in accordance with Section 2.17.
(e) The Letter of Credit Issuer shall not increase the “Requested Draw”) and upon receipt Stated Amount of any Letter of Credit if the Letter of Credit Issuer would not be permitted at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof.
(f) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and g) The Letter of Credit Issuer shall act on behalf of the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article 14 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes Article 14 included the Letter of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender Credit Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditIssuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.04, (1) from time to time on any Applicable Business Day during the period from the Closing Date until the applicable Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit issued by it utilizing Commitments under the Dollar Tranche and/or the Multicurrency Tranche, as applicable; and (B)(1) the Dollar Lenders severally agree to participate in Dollar Letters of Credit issued for the account of the Borrower and any drawings thereunder and (2) the Multicurrency Lenders severally agree to participate in Multicurrency Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that immediately after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (v)(1) in the case of a Dollar Letter of Credit, the Total Dollar Outstandings shall not exceed the Total Dollar Commitment, (2) in the case of a Multicurrency Letter of Credit, the Total Multicurrency Outstandings shall not exceed the Total Multicurrency Commitment and (3) the Total Revolving Credit Outstandings plus the aggregate Dollar Equivalent of the principal amount of outstanding Competitive Loans shall not exceed the Revolving Credit Facility, (w) in the case of a Dollar Letter of Credit, the Available Dollar Commitment of any Dollar Lender shall not be less than zero, (x) in the case of a Multicurrency Letter of Credit, the Available Multicurrency Commitment of any Multicurrency Lender shall not be less than zero, (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit and (z) the Outstanding Amount of the L/C Obligations in respect of Letters of Credit issued by the L/C Issuer to issue such Letter of Credit shall not exceed such L/C Issuer’s Issuer Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) An L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance (or in the case of Auto-Extension Letters of Credit contemplated in Section 2.04(b)(iii), more than twelve months after the effective date of the most-recent extension of such Letter of Credit) unless such expiry date has been approved by (x) the Required Dollar Lenders in the case of a letter Dollar Letter of credit posted for its benefit upon demand Credit or (y) the Required Multicurrency Lenders in the case of a Multicurrency Letter of Credit; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (a) all the Dollar Lenders have approved such expiry date in the case of a Dollar Letter of Credit or all the Multicurrency Lenders have approved such expiry date in the case of a Multicurrency Letter of Credit or (b) such Letter of Credit shall have been Cash Collateralized or otherwise backstopped, in each case in a manner acceptable to the applicable issuing bank L/C Issuer.
(the “Requested Draw”iii) and upon receipt An L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Requested DrawL/C Issuer from issuing such Letter of Credit, apply or any such amounts Law applicable to such Applicable L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, including with respect to any foreign currencies, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, the Dollar Equivalent of the initial stated amount of such Letter of Credit is less than $100,000, in the case of a standby Letter of Credit;
(D) in the case of a Dollar Letter of Credit, a default of any Dollar Lender’s Advances obligations to fund under Section 2.04(c) exists or any Dollar Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer of such Letter of Credit has entered into satisfactory arrangements with the Borrower or such Lender to eliminate such L/C Issuer’s risk with respect to such Lender; or
(and E) in the Advances case of all Agented a Multicurrency Letter of Credit, a default of any Multicurrency Lender’s obligations to fund under Section 2.04(c) exists or any Multicurrency Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer of such Letter of Credit has entered into satisfactory arrangements with the Borrower or such Lender to eliminate such L/C Issuer’s risk with respect to such Lender.
(iv) An L/C Issuer shall not amend any Letter of Credit issued by it if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) An L/C Issuer shall be under no obligation to amend any Letter of Credit issued by it if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) An L/C Issuer shall act on behalf of the Dollar Lenders with respect to such Applicable Lender). If upon receipt any Dollar Letters of Credit and the Multicurrency Lenders with respect to any Multicurrency Letters of Credit, in each case issued by it and the documents associated therewith, and each L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying Article IX included such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon (a) Subject to the terms and conditions set forth in this Agreement, at any time and from time to time from the Closing Date through the day that is ninety (90) days prior to the Maturity Date, the Issuing Lender shall issue such Letters of Credit as the Borrower may request upon the delivery of a written request in the form of Exhibit F hereto (a “Letter of Credit Request”) to the Issuing Lender, provided that (i) no Default or Event of Default shall have occurred and be continuing, (ii) upon issuance of such Letter of Credit, the Letter of Credit Liabilities shall not exceed Five Million and No/100 Dollars ($5,000,000.00), (iii) in no event shall the sum of the outstanding principal amount of the Revolving Credit Loans, Swing Loans and Letter of Credit Liabilities (after giving effect to any requested Letters of Credit) exceed the lesser of the Total Commitment and the Borrowing Base Availability or cause a violation of the covenant set forth in §9.1, (iv) the conditions set forth in §§10 and 11 shall have been satisfied, and (v) in no event shall any amount drawn under a Letter of Credit be available for reinstatement or a subsequent drawing under such Letter of Credit. Notwithstanding anything to the contrary contained in this §2.10, the Issuing Lender shall not be obligated to issue, amend, extend, renew or increase any Letter of Credit at a time when any other Lender is a Defaulting Lender, unless the Issuing Lender is satisfied that the participation therein will otherwise be fully allocated to the Lenders that are Non-Defaulting Lenders consistent with §2.13(c) and the Defaulting Lender shall have no participation therein, except to the extent the Issuing Lender has entered into arrangements with the Borrower or such Defaulting Lender which are satisfactory to the Issuing Lender in its good faith determination to eliminate the Issuing Lender’s Fronting Exposure with respect to any such Defaulting Lender, including the delivery of cash collateral. The Issuing Lender may assume that the conditions in §§10 and 11 have been satisfied unless it receives written notice to Administrative Agent, any Applicable from a Lender that is such conditions have not been satisfied. Each Letter of Credit Request shall be executed by an Accelerating Authorized Officer of the Borrower. The Issuing Lender shall be entitled to conclusively rely on such Person’s authority to request a Letter of Credit on behalf of the Borrower. The Issuing Lender shall have no duty to verify the authenticity of any signature appearing on a Letter of Credit Request. The Borrower assumes all risks with respect to the use of the Letters of Credit. Unless the Issuing Lender and the Required Lenders otherwise consent, the term of any Letter of Credit shall not exceed a period of time commencing on the issuance of the Letter of Credit and ending one year after the date of issuance thereof, subject to extension pursuant to an “evergreen” clause acceptable to the Agent and the Issuing Lender (but in any event the term shall not extend beyond five (5) Business Days prior to the Maturity Date). The amount available to be drawn under any Letter of Credit shall reduce on a dollar-for-dollar basis the amount available to be drawn under the Total Commitment as a Revolving Credit Loan.
(b) Each Letter of Credit Request shall be submitted to the Issuing Lender at least five (5) Business Days (or such shorter period as the Issuing Lender may draw on approve) prior to the date upon which the requested Letter of Credit is to be issued. Each such Letter of Credit Request shall contain (i) a statement as to the purpose for which such Letter of Credit shall be used (which purpose shall be in accordance with the terms of this Agreement), and (ii) a certification by the chief financial officer of the Borrower that the Borrower and Guarantors are and will be in compliance with all covenants under the Loan Documents after giving effect to the issuance of such Letter of Credit. The Borrower shall further deliver to the Issuing Lender such additional applications (which application as of the date hereof is in the form of Exhibit G attached hereto) and documents as the Issuing Lender may require, in conformity with the then standard practices of its letter of credit posted for its benefit upon demand department, in connection with the issuance of such Letter of Credit; provided that in the event of any conflict, the terms of this Agreement shall control.
(c) The Issuing Lender shall, subject to the applicable issuing bank conditions set forth in this Agreement, issue the Letter of Credit on or before five (the “Requested Draw”5) and upon Business Days following receipt of any the documents last due pursuant to §2.10(b). Each Letter of Credit shall be in form and substance reasonably satisfactory to the Issuing Lender in its reasonable discretion.
(d) Upon the issuance of a Letter of Credit, each Lender shall be deemed to have purchased a participation therein from the Issuing Lender in an amount equal to its respective Commitment Percentage of the amount of such Requested Draw, apply any such amounts to such Applicable Letter of Credit. No Lender’s Advances (and the Advances obligation to participate in a Letter of all Agented Lenders Credit shall be affected by any other Lender’s failure to perform as required herein with respect to such Letter of Credit or any other Letter of Credit.
(e) Upon the issuance of each Letter of Credit, the Borrower shall pay to the Issuing Lender (i) for its own account, a Letter of Credit fronting fee calculated at the rate equal to one-eighth of one percent (0.125%) of the face amount of such Letter of Credit (which fee shall not be less than $1,500 in any event) and an administrative charge of $250, and (ii) for the accounts of the Lenders that are Non-Defaulting Lenders (including the Issuing Lender) in accordance with their respective percentage shares of participation in such Letter of Credit, a Letter of Credit fee calculated at the rate per annum equal to the Applicable Margin then applicable to LIBOR Rate Loans on the face amount of such Letter of Credit. Such fees shall be payable in quarterly installments in arrears with respect to each Letter of Credit on the first day of each calendar quarter following the date of issuance and continuing on each quarter or portion thereof thereafter, as applicable, or on any earlier date on which the Commitments shall terminate and on the expiration or return of any Letter of Credit. In addition, the Borrower shall pay to the Issuing Lender for its own account within five (5) days of demand of the Issuing Lender the standard issuance, documentation and service charges for Letters of Credit issued from time to time by the Issuing Lender.
(f) In the event that any amount is drawn under a Letter of Credit by the beneficiary thereof, the Borrower shall reimburse the Issuing Lender by having such amount drawn treated as an outstanding Base Rate Loan under this Agreement (the Borrower being deemed to have requested a Base Rate Loan on such date in an amount equal to the amount of such drawing and such amount drawn shall be treated as an outstanding Base Rate Loan under this Agreement) and the Agent shall promptly notify each Lender by telex, telecopy, telegram, telephone (confirmed in writing) or other similar means of transmission, and each Lender shall promptly and unconditionally pay to the Agent, for the Issuing Lender’s own account, an amount equal to such Lender’s Commitment Percentage of such Letter of Credit (to the extent of the amount drawn). If upon receipt of and to the Requested Drawextent any Lender shall not make such amount available on the Business Day on which such draw is funded, such Lender agrees to pay such amount to the Agent forthwith on demand, together with interest thereon, for each day from the date on which such draw was funded until the date on which such amount so received is in excess paid to the Agent, at the Federal Funds Effective Rate until three (3) days after the date on which the Agent gives notice of such Applicable Lender’s draw and at the Federal Funds Effective Rate plus one percent (and its Agented Lender’s1%) Advances (or other Obligations then due and owing for each day thereafter. Further, such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will Lender shall be deemed to refer to have assigned any and all Lenders other than such Applicable Lender payments made of principal and any Agented Lender interest on its Revolving Credit Loans, amounts due with respect to its participations in Letters of Credit and any other amounts due to it hereunder to the Agent to fund the amount of any drawn Letter of Credit which such Applicable Lender, for so long Lender was required to fund pursuant to this §2.10(f) until such amount has been funded (as the Obligations a result of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in fullassignment or otherwise). In the event that of any Applicable such failure or refusal, the Lenders not so failing or refusing shall be entitled to a priority secured position for such amounts as provided in §12.5. The failure of any Lender is to make funds available to the Agent in such amount shall not relieve any other Lender of its obligation hereunder to make funds available to the Agent pursuant to this §2.10(f).
(g) If after the issuance of a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent pursuant to §2.10(c) by the Issuing Lender, but prior to the issue funding of any portion thereof by a Lender, for any reason a drawing under a Letter of Credit cannot be refinanced as a Revolving Credit Loan, each Lender will, on the date such Revolving Credit Loan pursuant to §2.10(f) was to have been made, purchase an undivided participation interest in the Letter of Credit in an amount equal to its Commitment Percentage of the amount of such Letter of Credit. Each Lender will immediately transfer to the Issuing Lender in immediately available funds the amount of its participation and upon receipt thereof the Issuing Lender will deliver to such Lender a Letter of Credit participation certificate dated the date of receipt of such Eligible funds and in such amount.
(h) Whenever at any time after the Issuing Lender has received from any Lender any such Lender’s payment of funds under a Letter of Credit and thereafter the Issuing Lender receives any payment on account thereof, then the Issuing Lender will distribute to such Lender its participation interest in such amount (appropriately adjusted in the case of interest payments to reflect the period of time during which such Lender’s participation interest was outstanding and funded); provided, however, that in the event that such payment received by the Issuing Lender is required to be returned, such Lender will return to the Issuing Lender any portion thereof previously distributed by the Issuing Lender to it.
(i) The issuance of any supplement, modification, amendment, renewal or extension to or of any Letter of Credit shall be treated in all respects the same as the issuance of a new Letter of Credit.
(j) The Borrower assumes all risks of the acts, omissions, or misuse of any Letter of Credit by the beneficiary thereof. Neither the Agent, the Issuing Lender nor any Lender will be responsible for (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or if any document submitted by any party in connection with the amount issuance of any Eligible Letter of Credit, even if such document should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the form, validity, sufficiency, accuracy, genuineness or legal effect of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit needs or the rights or benefits thereunder or proceeds thereof in whole or in part, which may prove to be adjusted invalid or ineffective for any reason; (iii) failure of any beneficiary of any Letter of Credit to comply fully with the conditions required in amount order to demand payment under a Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document or draft required by or from a beneficiary in order to make a disbursement under a Letter of Credit or the proceeds thereof; (vii) for the misapplication by the beneficiary of any Letter of Credit of the proceeds of any drawing under such Letter of Credit; and (viii) for any consequences arising from causes beyond the control of the Agent or any Lender. None of the foregoing will affect, impair or prevent the vesting of any of the rights or powers granted to the Agent, the Issuing Lender or the Lenders hereunder. In furtherance and extension and not in limitation or derogation of any of the foregoing, any act taken or omitted to be taken by the Agent, the Issuing Lender or the other Lenders in good faith will be binding on the Borrower and will not put the Agent, the Issuing Lender or the other Lenders under any resulting liability to the Borrower; provided nothing contained herein shall relieve the Issuing Lender for liability to the Borrower arising as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, gross negligence or willful misconduct of the Loan Parties and Issuing Lender as determined by a court of competent jurisdiction after the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter exhaustion of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditall applicable appeal periods.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (American Realty Capital Healthcare Trust Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.04, (1) from time to time on any Applicable Lender Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in US Dollars or in one or more Alternative Currencies for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that is an Accelerating Lender may draw on after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Credit Commitments, (y) the Outstanding Amount of the Revolving Loans of any Revolving Lender, plus such Revolving Lender’s Pro Rata Revolving Share of the Outstanding Amount of all L/C Obligations, shall not exceed such Revolving Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a letter Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) Subject to Section 2.04(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good fxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable issuing bank to letters of credit generally;
(C) except as otherwise agreed to by the “Requested Draw”Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than US$100,000;
(D) and upon receipt such Letter of Credit is to be denominated in a currency other than US Dollars or an Alternative Currency;
(E) if the Letter of Credit is denominated in a currency other than US Dollars, the L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency; or
(F) a default of any Revolving Lender’s obligations to fund under Section 2.04(c) exists or any Revolving Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such amounts Revolving Lender to eliminate the L/C Issuer’s risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Pzena Investment Management, Inc.)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.04, (1) from time to time on any Applicable Lender Business Day during the period from the Closing Date until the day that is an Accelerating Lender may draw on seven days prior to the Maturity Date then in effect (or, if such day is not a letter Business Day, the next preceding Business Day), to issue Letters of Credit for the account of the Borrower or its Consolidated Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Consolidated Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.04(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date; or
(C) the expiry date of the requested Letter of Credit would occur after the Maturity Date, unless Borrower Cash Collateralizes such requested Letter Credit in accordance with Section 2.17 at least thirty (30) days prior to the Maturity Date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or the Letter of Credit in particular or shall impose upon demand the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable issuing bank on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the “Requested Draw”issuance of the Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (except as otherwise agreed by the Administrative Agent and the Advances L/C Issuer, the Letter of Credit is in an initial stated amount less than $50,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.18(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all Agented other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice to Administrative Agent(a) In connection with the Gulfstar Transaction and TNR Restatement, any Applicable Borrower, Guarantors, and Lender hereby agree that is an Accelerating Lender may draw those outstanding Letters of Credit shown on a letter of credit posted for its benefit upon demand to the applicable issuing bank Schedule 1 attached hereto (the “Requested DrawExcluded LCs”) issued by Lender, originally for the account of TNR and upon receipt now for the account of any such Requested DrawMGC, apply any such amounts as applicant, are hereby excluded from the definition of “Letters of Credit” under the Loan Agreement, subject to such Applicable the terms of this Amendment. Without limiting the generality of the foregoing, the Excluded LCs shall not constitute borrowings under the Loan Agreement. Such exclusion shall not relieve or reduce the obligations of MGC to Lender under the applications for the Excluded LCs, which shall remain in full force in effect in accordance with their terms. Hereafter, Lender’s Advances (rights and the Advances of all Agented Lenders remedies with respect to such Applicable Lender). If upon receipt the Excluded LCs shall be governed by (i) the terms of the Requested DrawExcluded LCs, (ii) the amount so received is terms of the applications related thereto, (iii) the terms of the Security Documents and guaranties securing and guaranteeing the Excluded LCs, and (iv) applicable law and not by the terms of the Loan Agreement. Mesa Energy, Inc. Attention: Xxxxx X. Xxxxxxx, C.E.O. April 10, 2014
(b) Upon the execution of this Amendment, TNR and Lender shall enter into (i) a First Amendment to Security Agreement amending the Security Agreement dated June 22, 2011 (the “Security Agreement”) executed by TNR in excess favor of such Applicable Lender’s Lender and (ii) a First Amendment to Mortgage, Collateral Assignment, Security Agreement, and its Agented Lender’sFinancing Statement amending the Mortgage, Collateral Assignment, Security Agreement, and Financing Statement dated July 22, 2011 (the “Louisiana Mortgage”) Advances executed by TNR in favor of Lender and securing the Secured Obligations to provide that (or i) the Properties and all associated collateral located in the Lake Hermitage Field in Plaquemines Parish, Louisiana shall hereafter secure only the obligations of MGC associated with the Excluded LCs and no other Secured Obligations, and (ii) the remaining Properties and all associated collateral covered by the Security Agreement and the Louisiana Mortgage shall continue to secure all Secured Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditExcluded LCs.
Appears in 1 contract
Samples: Loan Agreement (Armada Oil, Inc.)
Letters of Credit. Upon notice (a) The Issuing Lender will, from time to Administrative Agenttime until the Revolving Credit Termination Date, any Applicable Lender that is an Accelerating Lender may draw on a letter of credit posted for its benefit upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of duly executed Applications and such other documents, instruments and/or agreements as the Issuing Lender may require, issue or amend Letters of Credit on such terms as are satisfactory to the Issuing Lender, provided, however that the Issuing Lender shall not issue any such Requested DrawLetter of Credit (A) at any time if, apply any such amounts after giving effect to such Applicable Lender’s Advances Letter of Credit, the Letter of Credit Obligations would exceed the lesser of (and i) $5,000,000 or (ii) the Advances aggregate amount of all Agented Lenders with respect to such Applicable Lender). If upon receipt Revolving Credit Commitments minus the sum of (w) the Letter of Credit Obligations, (x) the outstanding principal balance of the Requested DrawRevolving Credit Loans and (y) the outstanding principal balance of the Swing Line Loans, and (B) with an expiry date (i) more than one year from its issuance or (ii) subsequent to a date 30 days prior to the amount so received is in excess Revolving Credit Termination Date.
(b) OpCo agrees to reimburse the Administrative Agent for the account of the Issuing Lender, on demand, for each such Applicable Lender’s (and its Agented Lender’s) Advances (payment made by the Issuing Lender under or other Obligations then due and owing such Lenders), pursuant to any Letter of Credit or L/C Draft. OpCo further agrees to pay any such excess amounts to the Administrative Agent to be applied as provided for the account of the Issuing Lender, on demand, interest at the rate set forth in Section 7.03(a) (except that, solely for purposes of applying such excess, 2.13 applicable to Base Rate Loans on any amount paid by the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Issuing Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary under or pursuant to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if L/C Draft from the date of payment until the date of reimbursement to the Issuing Lender.
(c) OpCo's obligation to reimburse the Administrative Agent for the account of the Issuing Lender for payments and disbursements made by the Issuing Lender under any Letter of Credit shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which OpCo may have or have had against the Issuing Lender (or any other Lender), including, without limitation, any defense based on the failure of the demand for payment under such Letter of Credit to conform to the terms of such Letter of Credit, the legality, validity, regularity or enforceability of such Letter of Credit, or the identity of the transferee of such Letter of Credit or the sufficiency of any transfer of such Letter of Credit is transferable; provided, however, that OpCo shall not be obligated to reimburse the Administrative Agent for the account of the Issuing Lender for any wrongful payment or disbursement made under any Letter of Credit as a result of acts or omissions constituting gross negligence or willful misconduct on the part of the Issuing Lender or any of its officers, employees or agents.
(d) Notwithstanding anything to the contrary herein or in any Application, upon the occurrence of an Event of Default, an amount equal to the aggregate amount of the outstanding Letter of Credit Obligations shall, at the Issuing Lender's option and without demand upon or further notice to OpCo, be deemed (as between the Issuing Lender and OpCo) to have been paid or disbursed by the Issuing Lender under the Letters of Credit issued and L/C Drafts accepted by the Issuing Lender (notwithstanding that such amounts may not in fact have been so paid or disbursed), and a Revolving Credit Loan, which shall be a Base Rate Loan, to OpCo in the amount of such Letter of Credit Obligations to have been made and accepted by OpCo, which Loan shall be immediately due and payable.
(e) With respect to each Letter of Credit, each Lender (other than the Issuing Lender) hereby irrevocably and unconditionally agrees that it shall be deemed to have purchased and received from the Issuing Lender, without recourse or warranty an undivided interest in such Letter of Credit, effective simultaneously with the issuance thereof, in an amount equal to such Lender's Commitment Percentage of such Letter of Credit. For the purposes of this Agreement, the proportionate interest which the Issuing Lender retains in each Letter of Credit shall be referred to as its "participation" in such Letter of Credit.
(f) If the Issuing Lender shall fail to be reimbursed pursuant to subsections (b) or (d) above by OpCo for any payment or disbursement under a Letter of Credit or L/C Draft, each other Lender shall, promptly upon request of the Issuing Lender, make a Revolving Credit Loan, which shall be a Base Rate Loan in an amount equal to such Lender's Commitment Percentage of such payment or disbursement. If the Administrative Agent or the Issuing Lender subsequently receives from OpCo any reimbursement of such payment or disbursement, the Administrative Agent or the Issuing Lender, as the case may be, shall promptly remit to each Lender its Commitment Percentage of such reimbursement. All interest payments received by the Issuing Lender or the Administrative Agent on account of reimbursements under this Agreement shall be promptly distributed by the Issuing Lender or the Administrative Agent, as the case may be, to the other Lenders pro rata according to their respective Commitment Percentages (except to the extent that the Issuing Lender was not promptly reimbursed by any such Lender).
(g) The obligation of each Lender to provide the Administrative Agent with such Lender's pro rata share of the amount of any Eligible payment or disbursement made by the Issuing Lender under any outstanding Letter of Credit needs or L/C Draft shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which such Lender may have or have had against the Issuing Lender (or any other Lender), including, without limitation, any defense based on the failure of the demand for payment under such Letter of Credit to conform to the terms of such Letter of Credit, the legality, validity, regularity or enforceability of such Letter of Credit, or the identity of the transferee of such Letter of Credit or the sufficiency of any transfer if such Letter of Credit is transferable; provided, however, that the Lenders shall not be adjusted in amount obligated to reimburse the Issuing Lender for any wrongful payment or disbursement made under any Letter of Credit as a result of an assignment among Lenders that alters acts or omissions constituting gross negligence or willful misconduct on the Pro Rata Basis among Lenderspart of the Issuing Lender or any of its officers, the Loan Parties and the assigning Lender shall use commercially reasonable efforts employees or agents.
(h) In determining whether to replace make any payment under or revise such Eligible pursuant to any Letter of Credit or any related L/C Draft, the Issuing Lender shall have no obligation to allow such Applicable OpCo, any Lender or any other Person other than to confirm that any documents required to be a named beneficiary thereunder (or to revise delivered have been delivered and that such documents comply on their face with the amounts requirements of such Eligible Letters Letter of Credit) as soon as practicable after such assignment and until such placements are made. No action taken or omitted by the Issuing Lender under or in connection with any Letter of Credit or L/C Draft, if taken or omitted in the assigning absence of gross negligence or willful misconduct, shall put the Issuing Lender shall act as Applicable Lender for such Agented Lender with respect under any resulting liability to OpCo or any non-replaced or revised letter of creditLender.
Appears in 1 contract
Letters of Credit. Upon notice (a) THE LETTER OF CREDIT COMMITMENT.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Banks set forth in this SECTION 2.04, (1) from time to time on any Applicable Lender Business Day during the period from the Effective Date until the expiration of the Availability Period, to issue Letters of Credit for the account of the Borrower, and to amend or renew Letters of Credit previously issued by it, in accordance with SUBSECTION (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Banks severally agree to participate in Letters of Credit issued for the account of the Borrower and fund Unreimbursed Drawings with respect thereto; PROVIDED that is no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit and no Bank shall be obligated to participate in any Letter of Credit if, as of the date of such L/C Credit Extension, (x) the Total Outstandings would exceed the Commitments, (y) the aggregate Outstanding Amount of the Loans of any Bank PLUS such Bank's Commitment Percentage of the Outstanding Amount of all L/C Obligations would exceed such Bank's Commitment or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. The underlying documentation with respect to Existing Letters of Credit shall be deemed to be amended to the extent necessary to conform to the provisions set forth herein and thereafter all Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof, including, without limitation, SECTION 2.04(k). The Borrower and each Person that becomes, in accordance with the terms hereof, an Accelerating Lender may draw on a L/C Issuer agree that any letter of credit posted issued by such Person for its benefit upon demand the account of the Borrower that the Borrower and such L/C Issuer agree shall be treated as a Letter of Credit issued under this Agreement and that is identified to the applicable issuing bank Administrative Agent (including whether such letter of credit is a Performance L/C or Financial L/C) at the “Requested Draw”time such Person becomes an L/C Issuer or, in the case of Bank of America, promptly after the Effective Date shall, subject to the satisfaction of the conditions specified in SECTION 3.02 and the immediately preceding sentence, be deemed an Existing Letter of Credit hereunder. Each such Person that becomes an L/C Issuer shall confirm to the Administrative Agent on such date that it has received evidence satisfactory to it from the Borrower that each such Existing Letter of Credit is correctly identified to the Administrative Agent as a Performance L/C or Financial L/C, as the case may be.
(ii) and upon receipt No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any governmental authority or arbitrator shall by its terms purport to enjoin or restrain such Requested DrawL/C Issuer from issuing such Letter of Credit, apply or any such amounts law applicable to such Applicable Lender’s Advances L/C Issuer or any request or directive (and whether or not having the Advances force of all Agented Lenders law) from any governmental authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such L/C Issuer in good faith deems material to the issue it;
(B) subject to SECTION 2.04(b)(xxx), xxx expiry date of such Eligible requested Letter of Credit or if would occur more than twelve months after the amount date of any Eligible issuance;
(C) the issuance of such Letter of Credit needs would violate one or more policies of such L/C Issuer generally applicable to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise account parties;
(D) such Eligible Letter of Credit to allow is in an initial amount greater than U.S.$50,000,000; or
(E) such Applicable Lender Letter of Credit is to be used for a named purpose other than supporting the performance of a Person under a contract or agreement in the ordinary course of business or is to be denominated in a currency other than U.S. dollars.
(iii) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (B) the beneficiary thereunder (or to revise the amounts of such Eligible Letters Letter of Credit does not accept the proposed amendment to such Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Tyco International LTD /Ber/)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.13, (1) from time to time on any Applicable Business Day during the period from the Second Amended and Restated Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or any of its Subsidiaries, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and its Subsidiaries; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit, if as of the date of such L/C Credit Extension, (w) the Outstanding Amount of all L/C Obligations and all Revolving Loans would exceed the Aggregate Revolving Commitment, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations would exceed such Lender’s Revolving Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that is an Accelerating Lender may draw on a letter have expired or that have been drawn upon and reimbursed. The Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Second Amended and Restated Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or such Letter of Credit in particular or shall impose upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Issuer with respect to such Applicable LenderLetter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Second Amended and Restated Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Second Amended and Restated Closing Date and which the L/C Issuer in good fxxxx xxxxx material to it;
(B) subject to Section 2.13(b)(iii). If upon receipt , the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one or more policies of the Requested Draw, the amount so received L/C Issuer generally applicable to all borrowers; or
(E) such Letter of Credit is in excess a face amount less than $100,000, or is to be used for a purpose other than as described in Section 6.12 or is denominated in a currency other than Dollars.
(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Applicable Lender’s Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and its Agented Lender’sAmendment of Letters of Credit; Evergreen Letters of Credit.
(i) Advances Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (or other Obligations then due and owing such Lenders), pay any such excess amounts with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m., New York time, at least two Business Days (or such later date and time as the L/C Issuer may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be applied presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as provided the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in Section 7.03(aform and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (except that, solely for purposes B) the proposed date of applying amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such excessother matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application, the references to “Lenders” L/C Issuer will confirm with the Administrative Agent (by telephone or in clauses Second, Third and Fourth writing) that the Administrative Agent has received a copy of such Section 7.03(aLetter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a participation in such Letter of Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Letter of Credit.
(iii) will If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in it sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an “Evergreen Letter of Credit”); provided that any such Evergreen Letter of Credit must permit the L/C Issuer to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Nonrenewal Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such renewal. Once an Evergreen Letter of Credit has been issued, the Lenders shall be deemed to refer have authorized (but may not require) the L/C Issuer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as permit the Obligations renewal of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because at any time to a date not later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such renewal if it has become a received notice at least five Business Days immediately preceding the Nonrenewal Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such renewal or (2) from any Lender subsequent stating that one or more of the applicable conditions specified in Section 4.03 is not then satisfied and directing the L/C Issuer not to permit such renewal. Notwithstanding anything to the issue date contrary contained herein, the L/C Issuer shall have no obligation to permit the renewal of such Eligible any Evergreen Letter of Credit at any time.
(iv) Promptly after its delivery of any Letter of Credit or if the amount of any Eligible Letter of Credit needs amendment to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (an advising bank with respect thereto or to revise the amounts beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Eligible Letters Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced Credit or revised letter of creditamendment.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) On the terms and subject to Administrative Agentthe conditions set forth herein, (A) the L/C Issuer (1) shall, from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, issue Letters of Credit in Dollars for the account of the Borrower in support of the obligations of the Borrower or any other Loan Party, and amend or renew Letters of Credit previously issued by it, in accordance with Section 2.02(b) below, and (2) shall honor drafts under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower in support of the obligations of the Borrower or any other Loan Party; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Revolving Lender shall be obligated to participate in, any Applicable Letter of Credit if as of the date of such L/C Credit Extension, (x) the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations would exceed the Total Revolving Loan Commitment at such time, (y) the aggregate Effective Amount of the Revolving Loans of any Revolving Lender, plus such Revolving Lender’s Total Lender Risk Participation would exceed such Revolving Lender’s Revolving Loan Commitment, or (z) the Effective Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Each Letter of Credit shall be in a form reasonably acceptable to the L/C Issuer. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that is an Accelerating Lender may draw on a letter have expired or that have been drawn upon and reimbursed. Nothing herein limits the Borrower’s obligations under Section 2.06(c)(i). All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Requirement of Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or such Letter of Credit in particular or shall impose upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Issuer with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the July 2017 Amendment Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the July 2017 Amendment Effective Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.02(b)(iii), (1) in the issue case of any Standby Letter of Credit, the expiry date of such Eligible requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal or (2) in the case of any Commercial Letter of Credit, the expiry date of such requested Letter of Credit would occur more than 180 days after 49 the date of issuance or last renewal, in either case unless the Required Revolving Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer or the terms and conditions of the applicable Letter of Credit Application;
(E) such Letter of Credit is in a face amount less than $25,000, in the case of a Commercial Letter of Credit or if $100,000 (or such lesser amount agreed upon by the amount L/C Issuer) in the case of any Eligible other type of Letter of Credit needs to be adjusted or denominated in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise currency other than Dollars;
(F) such Eligible Letter of Credit is in violation of the ISP, the UCP or other applicable Governmental Rule; or
(G) any Lender is at such time a Defaulting Lender hereunder, unless such Lender’s Fronting Exposure has been reallocated to allow other Lenders in accordance with Section 2.16(a) or the L/C Issuer has entered into arrangements satisfactory to the L/C Issuer with the Borrower or such Applicable Defaulting Lender to eliminate the L/C Issuer’s Fronting Exposure.
(iii) The L/C Issuer shall be a named under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation under the terms hereof to issue such Letter of Credit as amended or (B) the beneficiary thereunder (or does not accept the proposed amendment to revise the amounts of such Eligible Letters Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in an Alternative Currency for the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Revolving Commitments and (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of credit posted for Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) No L/C Issuer shall issue any Letter of Credit, if the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its benefit upon demand terms purport to enjoin or restrain the applicable L/C Issuer from issuing such Letter of Credit, or any Law applicable to the applicable issuing bank L/C Issuer or any request or directive (whether or not having the “Requested Draw”force of law) from any Governmental Authority with jurisdiction over the applicable L/C Issuer shall prohibit, or request that the applicable L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the applicable L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the applicable L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the applicable L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and upon receipt which the applicable L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the applicable L/C Issuer; or
(C) except as otherwise agreed by the Administrative Agent and the applicable L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency.
(D) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply provided that the events described in this clause (D) shall not relieve the L/C Issuer from its obligations to issue any such amounts Letter of Credit if (1) the provisions of Section 2.16(d) are available to be utilized by the L/C Issuer on the date of issuance of the Letter of Credit to reallocate the Applicable Percentages of the non-Defaulting Lenders so as to eliminate the L/C Issuer’s risk with respect to such Applicable Defaulting Lender by reducing such Defaulting Lender’s Advances Applicable Percentage with respect to such Letter of Credit to zero or (and 2) if the Advances provisions of all Agented Section 2.16(d) are not available for use as described in clause (1), the L/C Issuer has entered into satisfactory arrangements with the Borrower (such as through the delivery of Cash Collateral) or such Defaulting Lender to eliminate the L/C Issuer’s risk with respect to such Defaulting Lender, including as described in Section 2.15.
(iv) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) the applicable L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(v) Each L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying Article X included such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment. Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Applicable Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(i) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all the Revolving Credit Lenders and the L/C Issuer have approved such expiry date or (y) such Letter of Credit is an Accelerating Lender may draw cash collateralized on a letter terms and pursuant to arrangements reasonably satisfactory to the L/C Issuer.
(ii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Revolving Credit Lender is at that time a Defaulting Lender and there is any Fronting Exposure (after giving effect to any reallocation pursuant to Section 2.16(a)(iv)) with respect to such Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the applicable issuing bank L/C Issuer (in its sole discretion) with the “Requested Draw”Borrower or such Defaulting Lender to eliminate the L/C Issuer’s Fronting Exposure (after giving effect to any reallocation pursuant to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and upon receipt all other L/C Obligations as to which the L/C Issuer has actual Fronting Exposure; or
(F) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iii) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof.
(iv) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, apply any such amounts or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and v) The L/C Issuer shall act on behalf of the Advances of all Agented Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article 9 with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article 9 included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) Agent agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.03: (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of Borrower [or certain Subsidiaries], and to amend [or renew] Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) Lenders severally agree to participate in Letters of Credit issued for the account of Borrower; provided that Agent shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Applicable Lender Letter of Credit if as of the date of such L/C Credit Extension, (x) the Total Outstandings would exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations would exceed-such Lenders Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, (x) Borrower's ability to-obtain-Letters-of Credit shall be fully revolving, and accordingly Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that is an Accelerating Lender may draw have expired or that have been drawn upon and reimbursed, and (y) on a letter the Closing Date, Agent shall issue the Back-Up L/C.
(ii) Agent shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain Agent from issuing such Letter of Credit, or any Law applicable to Agent or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over Agent shall prohibit, or request that Agent refrain from, the issuance of letters of credit posted for its benefit generally or such Letter of Credit in particular or shall impose upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders Agent with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent any restriction, reserve or capital requirement (for which Agent is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon Agent any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which Agent in good xxxxx xxxxx material to it;
(B) subject to Section 2.03(b)(iv), the issue expiry date of such Eligible requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested standby Letter of Credit would occur after the Maturity Date, unless Borrower shall, on or before, the Maturity Date, Cash Collateralize (as defined in Section 2.03(g) hereof), the Outstanding Amount of such Letter of Credit;
(D) the issuance of such Letter of Credit would violate one or more policies of Agent; or
(E) such Letter of Credit is in an initial amount less than $10,000, in the case of a commercial Letter of Credit, or $50,000, in the case of a standby Letter of Credit, or is to be denominated in a currency other than Dollars.
(iii) Agent shall be under no obligation to amend any Letter of Credit if (A) Agent would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(iv) Each commercial Letter of Credit will require drafts payable at sight or up to 60 days after sight.
(b) Procedures for Issuance and Amendment of Letters of Credit: Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of Borrower delivered to Agent in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of Borrower. Such Letter of Credit Application must be received by Agent not later than 11:00 a.m., Los Angeles time, at least two Business Days (or such later date and time as Agent may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.
(ii) Promptly after receipt of any Letter of Credit Application by Agent at the address set forth in Schedule 10.02 for receiving Letter of Credit Applications and related correspondence, if the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions hereof, Agent shall, on the requested date, issue a Letter of Credit for the account of Borrower or applicable Subsidiary or enter into the applicable amendment, as the case may be, in each case in accordance with Agent's usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from Agent a risk participation in such Letter of Credit in an amount equal to the product of such Lender's Pro Rata Share times the amount of such Letter of Credit
(iii) Promptly after its delivery of any Letter of Credit or if the amount of any Eligible Letter of Credit needs amendment to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow an advising bank with respect thereto or to the beneficiary thereof, Agent will also deliver to Borrower a true and complete copy of such Applicable Lender Letter of Credit or amendment.
(iv) If Borrower so requests in any applicable Letter of Credit Application, Agent may, in it sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an "Auto-Renewal Letter of Credit"); provided that any such Auto-Renewal Letter of Credit must permit Agent to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the "Nonrenewal Notice Date") in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by Agent, Borrower shall not be required to make a named beneficiary thereunder specific request to Agent for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, Lenders shall be deemed to have authorized (or but may not require) Agent to revise permit the amounts renewal of such Eligible Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that Agent shall not permit any such renewal if (A) Agent has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of Section 2.03a(ii) or otherwise), or (B) it has received notice (which may be by telephone or in writing) at least five (5) Business Days before the Nonrenewal Notice Date (1) from the Required Lenders that they have elected not to permit such renewal or (2) from any Lender or Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied. Notwithstanding anything to the contrary contained herein, (x) Agent shall have no obligation to permit the renewal of any Auto Renewal Letter of Credit at any time, and (y) the Back-Up L/C shall have an expiry date not later than the last expiry date of any of the Existing Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.
Appears in 1 contract
Samples: Revolving/Term Loan Credit Agreement (Ashworth Inc)
Letters of Credit. Upon notice (a) Subject to Administrative Agentthe terms and conditions of this Agreement, Foothill agrees to issue letters of credit for the account of Borrower (each, an "L/C") or to issue guarantees of payment (each such guaranty, an "L/C Guaranty") with respect to letters of credit issued by an issuing bank for the account of Borrower. Foothill shall have no obligation to issue a Letter of Credit if, immediately thereafter, any Applicable Lender of the following would result:
(i) the sum of 100% of the aggregate amount of all undrawn and unreimbursed Inventory Letters of Credit PLUS 100% of the aggregate amount of all other types of undrawn and unreimbursed Letters of Credit, would exceed the Borrowing Base LESS the amount of outstanding Advances; or
(ii) the aggregate amount of all undrawn or unreimbursed Letters of Credit (including Inventory Letters of Credit) would exceed the lower of: (x) the Maximum Revolving Amount LESS the amount of outstanding Advances, and (y) the sum of $2,000,000; or
(iii) the outstanding Obligations (other than under the Term Loan) would exceed the Maximum Revolving Amount. Borrower expressly understands and agrees that Foothill shall have no obligation to arrange for the issuance by issuing banks of the letters of credit that are to be the subject of L/C Guarantees. Borrower and Foothill acknowledge and agree that certain of the letters of credit that are to be the subject of L/C Guarantees may be outstanding on the Closing Date. Each Letter of Credit shall have an expiry date no later than 14 days prior to the date on which this Agreement is scheduled to terminate under SECTION 3.4 (without regard to any potential renewal term) and all such Letters of Credit shall be in form and substance acceptable to Foothill in its sole discretion. If Foothill is obligated to advance funds under a Letter of Credit, Borrower immediately shall reimburse such amount to Foothill and, in the absence of such reimbursement, the amount so advanced immediately and automatically shall be deemed to be an Accelerating Lender Advance hereunder and, thereafter, shall bear interest at the rate then applicable to Advances under SECTION 2.6.
(b) Borrower hereby agrees to indemnify, save, defend, and hold Foothill harmless from any loss, cost, expense, or liability, including payments made by Foothill, expenses, and reasonable attorneys fees incurred by Foothill arising directly out of or in connection with any Letter of Credit other than by virtue of Foothill's gross negligence or wilful misconduct. Borrower agrees to be bound by the issuing bank's regulations and interpretations of any Letters of Credit guarantied by Foothill and opened to or for Borrower's account or by Foothill's interpretations (in its Permitted Discretion) of any L/C issued by Foothill to or for Borrower's account, even though this interpretation may draw on be different from Borrower's own, and Borrower understands and agrees that Foothill shall not be liable for any negligence, (other than gross negligence) 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 Guarantees may require Foothill to indemnify the issuing bank for certain costs or liabilities arising out of claims by Borrower against such issuing bank. Borrower hereby agrees to indemnify, save, defend, and hold Foothill harmless with respect to any loss, cost, or expense (including reasonable attorneys fees), or liability incurred by Foothill under any L/C Guaranty as a result of Foothill's indemnification of any such issuing bank.
(c) Borrower hereby authorizes and directs any bank that issues a letter of credit posted for its benefit upon demand guaranteed by Foothill to deliver to Foothill all instruments, documents, and other writings and property received by the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts pursuant to such Applicable Lender’s Advances (letter of credit, and to accept and rely upon Foothill's instructions and agreements with respect to all matters arising in connection with such letter of credit and the Advances of all Agented Lenders related application. Borrower may or may not be the "applicant" or "account party" with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.
(d) Any and all charges, commissions, fees, and costs incurred by Foothill directly relating to the letters of credit guaranteed by Foothill shall be considered Foothill Expenses for purposes of this Agreement and immediately shall be reimbursable by Borrower to Foothill.
(e) Immediately upon the termination of this Agreement, with respect to each outstanding Letter of Credit, Borrower agrees to either (i) provide cash collateral to be held by Foothill in an amount equal to 102% of the maximum amount of Foothill's obligations under such outstanding Letter of Credit, or (ii) cause to be surrendered to Foothill the originals of such outstanding Letter of Credit and to be delivered to Foothill releases of all of Foothill's obligations under such outstanding Letter of Credit. At Foothill's discretion, any proceeds of Collateral received by Foothill after the occurrence and during the continuation of an Event of Default may be held as the cash collateral required by this SECTION 2.2(e).
(f) If by reason of (i) any change in any applicable law, treaty, rule, or regulation or any change in the interpretation or application by any Governmental Authority of any such applicable law, treaty, rule, or regulation, or (ii) compliance by the issuing bank or Foothill with any direction, request, or requirement (irrespective of whether having the force of law) of any Governmental Authority or monetary authority including, without limitation, Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect (and any successor thereto):
(A) any reserve, deposit, or similar requirement is or shall be imposed or modified in respect of any Letters of Credit issued hereunder, or
(B) there shall be imposed on the issuing bank or Foothill any other condition regarding any letter of credit, or Letter of Credit, as applicable, issued pursuant hereto; and the result of the foregoing is to increase, directly or indirectly, the cost to the issuing bank or Foothill of issuing, making, guaranteeing, or maintaining any letter of credit, or Letter of Credit, as applicable, or to reduce the amount receivable in respect thereof by such issuing bank or Foothill, then, and in any such case, Foothill 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 the issuing bank or Foothill may specify to be necessary to compensate the issuing bank or Foothill 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 rate set forth in SECTION 2.6(a)(i) OR (c)(i), as applicable. The determination by the issuing bank or Foothill, as the case may be, of any amount due pursuant to this SECTION 2.2(f), 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
Letters of Credit. Upon notice (a) The Existing Letters of Credit described in Schedule 2.4 shall be Letters of Credit for all purposes under this Agreement.
(1) Subject to Administrative the terms and conditions hereof, at any time and from time to time from the Closing Date through the Revolving Loan Maturity Date applicable to the Issuing Lender, the Issuing Lender shall, in reliance upon the agreements of the Lenders set forth in this Section 2.4, issue such Letters of Credit under the Revolving Commitment as Borrower may request by a Request for Letter of Credit for the account of Borrower; provided that:
(i) after giving effect to all such Letters of Credit, the sum of:
(A) the Outstanding Amount of all Revolving Loans; plus
(B) the Outstanding Amount of all Swing Line Advances; plus
(C) the Outstanding Amount of all L/C Obligations, does not exceed the then applicable Revolving Commitment; and
(ii) the Outstanding Amount of all L/C Obligations does not exceed the Letter of Credit Sublimit;
(2) Each Letter of Credit shall be in a form reasonably acceptable to the Issuing Lender.
(3) Unless all the Revolving Lenders otherwise consent in a writing delivered to the Agent, any Applicable Lender that is an Accelerating Lender may draw on a letter of credit posted for its benefit upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt term of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances Letter of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders Credit (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Existing Letters of Credit) shall not exceed twenty four (24) months.
(4) The term of any Letter of Credit shall not extend beyond the latest Revolving Loan Maturity Date unless all Revolving Lenders and the Issuing Lender otherwise consent in a writing delivered to the Agent and as soon as practicable after a condition thereto Borrower provides Cash Collateral to the Issuing Lender on or prior to the latest Revolving Loan Maturity Date.
(b) Each Request for Letter of Credit shall be submitted to the Issuing Lender, with a copy to the Agent, at least two (2) Banking Days prior to the date upon which the related Letter of Credit is proposed to be issued. The Agent shall promptly notify the Issuing Lender whether such assignment Request for Letter of Credit, and until the issuance of a Letter of Credit pursuant thereto, conforms to the requirements of this Agreement (including whether there exists sufficient availability under the Revolving Commitments). Unless the Agent provides written notice to the applicable Issuing Lender at least one (1) Banking Day prior to the requested date of issuance that the issuance of such placements are madeletter of credit does not conform to the requirements of this Agreement, then, subject to the terms and conditions hereof, such Issuing Lender shall, on the requested date, issue a Letter of Credit hereunder. Upon issuance of a Letter of Credit, the assigning Issuing Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter promptly notify the Agent, and the Agent shall promptly notify the Revolving Lenders, of credit.the amount and terms
Appears in 1 contract
Samples: Credit Agreement (Viasat Inc)
Letters of Credit. Upon notice During the Revolving Commitment Period, (i) the L/C Issuer, in reliance upon the commitments of the Lenders set forth herein, agrees (A) to Administrative Agentissue or extend Letters of Credit denominated in Dollars or in an Alternative Currency for the account of the Borrower or any member of the Consolidated Group on any Business Day, any Applicable Lender (B) to amend or extend Letters of Credit previously issued hereunder, and (C) to honor drawings under Letters of Credit; and (ii) the Lenders severally agree to purchase from the L/C Issuer a participation interest in the Existing Letters of Credit and Letters of Credit issued hereunder in an amount equal to such Lender’s Revolving Commitment Percentage thereof; provided that is an Accelerating Lender (A) the Outstanding Amount of L/C Obligations shall not exceed TEN MILLION DOLLARS ($10,000,000) (as such amount may draw on a letter of credit posted for its benefit upon demand be decreased in accordance with the provisions hereof, the “L/C Sublimit”), (B) with regard to the applicable issuing bank Lenders collectively, the Outstanding Amount of Revolving Obligations shall not exceed the Aggregate Revolving Committed Amount, and (the “Requested Draw”C) and upon receipt of any with regard to each Lender individually, such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt Revolving Commitment Percentage of the Requested DrawOutstanding Amount of Revolving Obligations shall not exceed its respective Revolving Committed Amount. Subject to the terms and conditions hereof, the amount so received is in excess Borrower’s ability to obtain Letters of such Applicable Lender’s (Credit shall be fully revolving, and its Agented Lender’s) Advances (accordingly the Borrower may obtain Letters of Credit to replace Letters of Credit that have expired or other Obligations then due that have been drawn upon and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes reimbursed. Existing Letters of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will Credit shall be deemed to refer have been issued hereunder and shall be subject to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as governed by the Obligations of such Lenders (other than such Applicable Lender terms and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditconditions hereof.
Appears in 1 contract
Letters of Credit. (a) Subject to the terms and conditions set forth in this Agreement, at any time and from time to time from the Closing Date through the day that is ninety (90) days prior to the Maturity Date, the Issuing Lender shall issue such Letters of Credit as Borrowers may request upon the delivery of a written request in the form of Exhibit G (a “Letter of Credit Request”) to the Issuing Lender, provided that (i) no Default or Event of Default shall have occurred and be continuing, (ii) upon issuance of such Letter of Credit, the aggregate Letter of Credit Liabilities shall not exceed the Letter of Credit Commitment, (iii) in no event shall the Aggregate Real Estate Revolving Credit Obligations (after giving effect to any requested Letters of Credit) exceed the lesser of the Total Real Estate Revolving Loan Commitment and the Real Estate Borrowing Base Availability or cause a violation of the covenant set forth in Section 9.1, (iv) the conditions set forth in Sections 10 and 11 shall have been satisfied, and (v) in no event shall any amount drawn under a Letter of Credit be available for reinstatement or a subsequent drawing under such Letter of Credit. Notwithstanding anything to the contrary contained in this Section 2.9, the Issuing Lender shall not be obligated to issue, amend, extend, renew or increase any Letter of Credit at a time when any other Real Estate Revolving Loan Lender is a Defaulting Lender, unless the Issuing Lender is satisfied that the participation therein will otherwise be fully allocated to the Real Estate Revolving Loan Lenders that are Non-Defaulting Lenders consistent with Section 2.12(c) and the Defaulting Lender shall have no participation therein, except to the extent the Issuing Lender has entered into arrangements with Borrowers or such Defaulting Lender which are satisfactory to the Issuing Lender in its good faith determination to eliminate the Issuing Lender’s Fronting Exposure with respect to any such Defaulting Lender, including the delivery of cash collateral. The Issuing Lender may assume that the conditions in Sections 10 and 11 have been satisfied unless it receives written notice from a Real Estate Revolving Loan Lender that such conditions have not been satisfied. Each Letter of Credit Request shall be executed by an Authorized Officer of Parent. The Issuing Lender shall be entitled to conclusively rely on such Person’s authority to request a Letter of Credit on behalf of Borrowers. The Issuing Lender shall have no duty to verify the authenticity of any signature appearing on a Letter of Credit Request. Each Borrower assumes all risks with respect to the use of the Letters of Credit. Unless the Issuing Lender and the Majority Real Estate Revolving Loan Lenders otherwise consent, the term of any Letter of Credit shall not exceed a period of time commencing on the issuance of the Letter of Credit and ending one (1) year after the date of issuance thereof, subject to extension pursuant to an “evergreen” clause acceptable to Administrative Agent and the Issuing Lender (but in any event the term shall not extend beyond five (5) Business Days prior to the Maturity Date). The amount available to be drawn under any Letter of Credit shall reduce on a dollar-for-dollar basis the amount available to be drawn under the Total Real Estate Revolving Loan Commitment as a Real Estate Revolving Loan.
(b) Each Letter of Credit Request shall be submitted to the Issuing Lender at least five (5) Business Days (or such shorter period as the Issuing Lender may approve) prior to the date upon which the requested Letter of Credit is to be issued. Each such Letter of Credit Request shall contain (i) a statement as to the purpose for which such Letter of Credit shall be used (which purpose shall be in accordance with the terms of this Agreement), and (ii) a certification by the chief financial officer of Parent that the Loan Parties are and will be in compliance with all covenants under the Loan Documents after giving effect to the issuance of such Letter of Credit. Borrowers shall further deliver to the Issuing Lender such additional applications (the form of application as of the date hereof being attached hereto as Exhibit H) and documents as the Issuing Lender may require, in conformity with the then standard practices of its letter of credit department, in connection with the issuance of such Letter of Credit; provided that in the event of any conflict, the terms of this Agreement shall control.
(c) The Issuing Lender shall, subject to the conditions set forth in this Agreement, issue the Letter of Credit on or before five (5) Business Days following receipt of the documents last due pursuant to Section 2.9(b). Each Letter of Credit shall be in form and substance reasonably satisfactory to the Issuing Lender in its reasonable discretion.
(d) Upon notice the issuance of a Letter of Credit, each Real Estate Revolving Loan Lender shall be deemed to have purchased a participation therein from the Issuing Lender in an amount equal to its respective Real Estate Revolving Loan Commitment Percentage of the amount of such Letter of Credit. No Real Estate Revolving Loan Lender’s obligation to participate in a Letter of Credit shall be affected by any other Real Estate Revolving Loan Lender’s failure to perform as required herein with respect to such Letter of Credit or any other Letter of Credit.
(e) Upon the issuance of each Letter of Credit, Borrowers shall pay to the Issuing Lender (i) for its own account, a Letter of Credit fronting fee calculated at the rate equal to one-eighth of one percent (0.125%) of the face amount of such Letter of Credit (which fee shall not be less than $1,500 in any event) and an administrative charge of $250, and (ii) for the accounts of the Real Estate Revolving Loan Lenders that are Non-Defaulting Lenders (including the Issuing Lender) in accordance with their respective percentage shares of participation in such Letter of Credit, a Letter of Credit fee calculated at the rate per annum equal to the Applicable Margin then applicable to LIBOR Rate Loans on the face amount of such Letter of Credit. Such fees shall be payable in quarterly installments in arrears with respect to each Letter of Credit on the first day of each calendar quarter following the date of issuance and continuing on each quarter or portion thereof thereafter, as applicable, or on any earlier date on which the Real Estate Revolving Loan Commitments shall terminate and on the expiration or return of any Letter of Credit. In addition, Borrowers shall pay to the Issuing Lender for its own account within five (5) days of demand of the Issuing Lender the standard issuance, documentation and service charges for Letters of Credit issued from time to time by the Issuing Lender.
(f) In the event that any amount is drawn under a Letter of Credit by the beneficiary thereof, Borrowers shall reimburse the Issuing Lender by having such amount drawn treated as an outstanding Real Estate Revolving Loan that is a Base Rate Loan under this Agreement (Borrowers being deemed to have requested a Base Rate Loan on such date in an amount equal to the amount of such drawing and such amount drawn shall be a Real Estate Revolving Loan that is a Base Rate Loan under this Agreement) and Administrative Agent shall promptly notify each Real Estate Revolving Loan Lender by telecopy, telephone (confirmed in writing) or other similar means of transmission, and each Real Estate Revolving Loan Lender shall promptly and unconditionally pay to Administrative Agent, any Applicable Lender that is for the Issuing Lender’s own account, an Accelerating Lender may draw on a letter amount equal to such Real Estate Revolving Loan Lender’s Real Estate Revolving Loan Commitment Percentage of credit posted for its benefit upon demand such Letter of Credit (to the applicable issuing bank extent of the amount drawn). If and to the extent any Real Estate Revolving Loan Lender shall not make such amount available on the Business Day on which such draw is funded, such Real Estate Revolving Loan Lender agrees to pay such amount to Administrative Agent forthwith on demand, together with interest thereon, for each day from the date on which such draw was funded until the date on which such amount is paid to Administrative Agent, at the Federal Funds Effective Rate until three (3) days after the “Requested Draw”date on which Administrative Agent gives notice of such draw and at the Federal Funds Effective Rate plus one percent (1%) for each day thereafter. Further, such Real Estate Revolving Loan Lender shall be deemed to have assigned any and upon receipt all payments made of any such Requested Drawprincipal and interest on its Real Estate Revolving Loans, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders due with respect to such Applicable Lender). If upon receipt its participations in Letters of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (Credit and its Agented Lender’s) Advances (or any other Obligations then amounts due and owing such Lenders), pay any such excess amounts to the it hereunder to Administrative Agent to be applied fund the amount of any drawn Letter of Credit which such Real Estate Revolving Loan Lender was required to fund pursuant to this Section 2.9(f) until such amount has been funded (as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth a result of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in fullassignment or otherwise). In the event that of any Applicable such failure or refusal, the Real Estate Revolving Loan Lenders not so failing or refusing shall be entitled to a priority secured position for such amounts as provided in Section 3.6. The failure of any Real Estate Revolving Loan Lender is to make funds available to Administrative Agent in such amount shall not relieve any other Real Estate Revolving Loan Lender of its obligation hereunder to make funds available to Administrative Agent pursuant to this Section 2.9(f).
(g) If after the issuance of a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent pursuant to Section 2.9(c) by the Issuing Lender, but prior to the issue funding of any portion thereof by a Real Estate Revolving Loan Lender, for any reason a drawing under a Letter of Credit cannot be refinanced as an Real Estate Revolving Loan, each Real Estate Revolving Loan Lender will, on the date such Real Estate Revolving Loan pursuant to Section 2.9(f) was to have been made, purchase an undivided participation interest in the Letter of Credit in an amount equal to its Real Estate Revolving Loan Commitment Percentage of the amount of such Letter of Credit. Each Real Estate Revolving Loan Lender will immediately transfer to the Issuing Lender in immediately available funds the amount of its participation and upon receipt thereof the Issuing Lender will deliver to such Real Estate Revolving Loan Lender a Letter of Credit participation certificate dated the date of receipt of such Eligible funds and in such amount.
(h) Whenever at any time after the Issuing Lender has received from any Real Estate Revolving Loan Lender any such Real Estate Revolving Loan Lender’s payment of funds under a Letter of Credit and thereafter the Issuing Lender receives any payment on account thereof, then the Issuing Lender will distribute to such Real Estate Revolving Loan Lender its participation interest in such amount (appropriately adjusted in the case of interest payments to reflect the period of time during which such Real Estate Revolving Loan Lender’s participation interest was outstanding and funded); provided, however, that in the event that such payment received by the Issuing Lender is required to be returned, such Real Estate Revolving Loan Lender will return to the Issuing Lender any portion thereof previously distributed by the Issuing Lender to it.
(i) The issuance of any supplement, modification, amendment, renewal or extension to or of any Letter of Credit shall be treated in all respects the same as the issuance of a new Letter of Credit.
(j) Each Borrower assumes all risks of the acts, omissions, or misuse of any Letter of Credit by the beneficiary thereof. Neither Administrative Agent, the Issuing Lender nor any Real Estate Revolving Loan Lender will be responsible for (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or if any document submitted by any party in connection with the amount issuance of any Eligible Letter of Credit, even if such document should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the form, validity, sufficiency, accuracy, genuineness or legal effect of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit needs or the rights or benefits thereunder or proceeds thereof in whole or in part, which may prove to be adjusted invalid or ineffective for any reason; (iii) failure of any beneficiary of any Letter of Credit to comply fully with the conditions required in amount order to demand payment under a Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document or draft required by or from a beneficiary in order to make a disbursement under a Letter of Credit or the proceeds thereof; (vii) for the misapplication by the beneficiary of any Letter of Credit of the proceeds of any drawing under such Letter of Credit; and (viii) for any consequences arising from causes beyond the control of Administrative Agent or any Real Estate Revolving Loan Lender. None of the foregoing will affect, impair or prevent the vesting of any of the rights or powers granted to Administrative Agent, the Issuing Lender or the Real Estate Revolving Loan Lenders hereunder. In furtherance and extension and not in limitation or derogation of any of the foregoing, any act taken or omitted to be taken by Administrative Agent, the Issuing Lender or the other Real Estate Revolving Loan Lenders in good faith will be binding on Borrowers and will not put Administrative Agent, the Issuing Lender or the other Real Estate Revolving Loan Lenders under any resulting liability to Borrowers; provided nothing contained herein shall relieve the Issuing Lender for liability to Borrowers arising as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, gross negligence or willful misconduct of the Loan Parties and Issuing Lender as determined by a court of competent jurisdiction after the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter exhaustion of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditall applicable appeal periods.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Letters of Credit. Upon notice to (a) If requested by the Administrative AgentBorrower, any Applicable Lender that is an Accelerating Lender may draw on a letter of credit posted for its benefit upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt own behalf or on behalf of any such Requested Drawother Borrower, apply any such amounts to such Applicable Lender’s Advances (and in accordance with the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is procedures set forth in excess of such Applicable Lender’s (and its Agented Lender’sSection 2.13(b) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent agrees to be applied as cause the Issuing Bank to issue Letters of Credit for the account of any Borrower; provided in Section 7.03(a) (except that, solely that the LC Amount shall not exceed the LC Sublimit at any time. No Letter of Credit may have an expiration date after the Final Maturity Date or that is more than one year after the date of issuance; provided that a Letter of Credit may provide for purposes automatic extensions of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, its expiry date for one or more successive one-year periods so long as the Issuing Bank has the right to terminate such Letter of Credit on each such annual expiration date and no renewal term may extend the term of any Letter of Credit to a date that is later than the Final Maturity Date. Notwithstanding anything to the contrary contained herein, the Borrowers, the Administrative Agent and the Lenders hereby agree that all LC Obligations and all obligations of such the Borrowers relating thereto shall be satisfied by the prompt issuance of one or more Revolving Loans that are Base Rate Revolving Loans, which the Borrowers hereby acknowledge are requested and Revolving Lenders (other than such Applicable Lender and any Agented Lender with respect hereby agree to such Applicable Lender) have not been indefeasibly paid in full)fund. In the event that Revolving Loans are not, for any Applicable reason, promptly made to satisfy all then existing LC Obligations, each Revolving Lender is not hereby agrees to pay to the Administrative Agent, on demand, for the benefit of the Issuing Bank, an amount equal to such LC Obligations multiplied by such Revolving Lender’s Pro Rata Share, and until so paid, such amount shall be secured by the Collateral and shall bear interest and be payable at the same rate and in the same manner as Reference Rate Loans. Immediately upon the issuance of a named beneficiary to any Eligible Letter of Credit because it has become under this Agreement, each Revolving Lender shall be deemed to have irrevocably and unconditionally purchased and received from the Issuing Bank, without recourse or warranty, an undivided interest and participation therein equal to such LC Obligations multiplied by such Revolving Lender’s Pro Rata Share. In connection with its administration of and enforcement of rights or remedies under any Letters of Credit, the Administrative Agent and its Related Parties shall be entitled to act, and shall be fully protected in acting, upon any certification, notice or other communication in whatever form believed by any of them, in good faith, to be genuine and correct and to have been signed, sent or made by a Lender subsequent to the issue date of such Eligible proper Person.
(b) A request for a Letter of Credit or if shall be made in the amount following manner: the Administrative Borrower may give the Administrative Agent and the Issuing Bank a written notice of any Eligible its request for the issuance of a Letter of Credit, not later than 11:00 a.m., one Business Day before the proposed issuance date thereof, in which notice the Borrower shall specify the issuance date and format and wording for the Letter of Credit needs being requested (which shall be satisfactory to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties Administrative Agent and the assigning Lender shall use commercially reasonable efforts Person being asked to replace or revise issue such Eligible Letter of Credit Credit). Such request shall be accompanied by an executed application and reimbursement agreement in form and substance satisfactory to allow such Applicable Lender the Administrative Agent and the Person being asked to be a named beneficiary thereunder (or to revise issue the amounts of such Eligible Letters Letter of Credit) , as soon well as practicable after such assignment any required resolutions and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditother documents.
Appears in 1 contract
Letters of Credit. Upon notice (i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each Issuing Bank agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.4, (1) from time to time on any Applicable Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit (including IRB L/Cs) denominated in Dollars or in one or more Alternative Currencies for the account of Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with paragraph (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of Company or its Subsidiaries and any drawings thereunder; provided that after giving effect to any Credit Extension with respect to any Letter of Credit, (x) the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect, (y) the Revolving Exposure of any Revolving Lender shall not exceed such Revolving Lender’s Revolving Commitment then in effect, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Revolving Commitment then in effect. Each request by Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by Company that is an Accelerating the Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. This Agreement shall be the “Reimbursement Agreement” referred to in the IRB L/Cs. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) No Issuing Bank shall issue any Letter of Credit, if:
(1) subject to Section 2.4(b)(iii), the expiry date of the requested Letter of Credit (other than IRB L/Cs) would occur more than twelve (12) months after the date of issuance or last extension, unless such Issuing Bank has approved such expiry date; or
(2) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless the Requisite Class Lenders of all Revolving Lenders have approved such expiry date and such Issuing Bank shall be satisfied with the arrangements with respect to the period commencing on the Letter of Credit Expiration Date and ending on such expiry date (it being understood and agreed that, for the avoidance of doubt, no Revolving Lender may draw on a letter shall be required to fund its Revolving Loan or L/C Advance pursuant to Section 2.4(c) after the Letter of Credit Expiration Date).
(iii) No Issuing Bank shall be under any obligation to issue any Letter of Credit if:
(1) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing the Letter of Credit, or any law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit posted for its benefit generally or the Letter of Credit in particular or shall impose upon demand such Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable issuing bank on the Closing Date and which such Issuing Bank in good xxxxx xxxxx material to it;
(2) the “Requested Draw”issuance of the Letter of Credit would violate one or more policies of the applicable Issuing Bank applicable to letters of credit generally;
(3) except as otherwise agreed by Administrative Agent and the applicable Issuing Bank, the Letter of Credit is in an initial stated amount less than $500,000, in the case of a commercial Letter of Credit, or $100,000, in the case of a standby Letter of Credit;
(4) the applicable Issuing Bank does not as of the issuance date of the requested Letter of Credit issue Letters of Credit in the requested currency; or
(5) any Revolving Lender is at that time a Defaulting Lender, unless the applicable Issuing Bank is satisfied that the participations in any existing Letters of Credit as well as the new, extended, renewed or increased Letter of Credit has been or will be fully allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.22(a)(iii) and upon receipt of any such Requested Draw, apply any Defaulting Lender shall not participate therein except to the extent such amounts to such Applicable Defaulting Lender’s Advances participation has been or will be fully Cash Collateralized in accordance with Section 2.22(d).
(and iv) No Issuing Bank shall amend any Letter of Credit if such Issuing Bank would not be permitted at such time to issue the Advances Letter of all Agented Credit in its amended form under the terms hereof.
(v) No Issuing Bank shall be under any obligation to amend any Letter of Credit if (1) such Issuing Bank would not have any obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (2) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) Each Issuing Bank shall act on behalf of the Revolving Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and each Issuing Bank shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’s1) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Section 9 with respect to any acts taken or omissions suffered by such Issuing Bank in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, 9 included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender Issuing Banks with respect to such Applicable Lenderacts or omissions, for so long and (2) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditIssuing Banks.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Covanta Holding Corp)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuers agree, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Company or its Subsidiaries (including the Designated Borrowers), and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Outstandings denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that is an Accelerating Lender may draw the L/C Credit Extension so requested complies with the conditions set forth in the provisos to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuers shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date; or
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date. The parties hereto acknowledge that the Existing Letters of Credit have the expiry dates set forth on a letter Schedule 1.02.
(iii) An L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon demand such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(D) such L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) the Outstanding Amount of the L/C Obligations with respect to Letters of Credit issued by such L/C issuer would exceed the sublimit established by such L/C Issuer in accordance with the definition thereof (which shall in all cases be less than or equal to the applicable issuing bank Letter of Credit Sublimit and shall be part of and not in addition thereto) or
(G) any Lender is at such time a Defaulting Lender, unless each L/C Issuer having actual or potential Fronting Exposure with respect to issued Letters of Credit has entered into arrangements, including the “Requested Draw”delivery of Cash Collateral, satisfactory to each such L/C Issuer as to Letters of Credit issued by it (in its sole discretion) and upon receipt with the Company or such Defaulting Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv) with respect to the Defaulting Lender).
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such Requested DrawL/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) Each L/C Issuer shall act on behalf of the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying Article IX included such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuers.
Appears in 1 contract
Samples: Credit Agreement (Stericycle Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) any L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders holding Revolving Commitments and Revolving Loans severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder (based on their respective Applicable Lender Percentages of the Aggregate Revolving Commitments); provided that is an Accelerating Lender may draw on after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Facility Outstandings shall not exceed the Borrowing Base, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a letter Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) An L/C Issuer shall not issue any Letter of Credit if, subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required Revolving Credit Lenders have approved such expiry date; or the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders holding Revolving Commitments have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or such Letter of Credit in particular or shall impose upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Issuer with respect to such Applicable Lender). If Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon receipt such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good fxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $250,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provision for automatic reinstatement of the Requested Drawstated amount after any drawing thereunder; or
(F) any Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the amount so received is delivery of Cash Collateral, satisfactory to such L/C Issuer (in excess its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) An L/C Issuer shall not amend any Letter of Credit if any L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Applicable Lender’s Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) An L/C Issuer shall act on behalf of the Lenders holding Revolving Commitments with respect to any Letters of Credit issued by it and its Agented Lender’sthe documents associated therewith, and such L/C Issuer shall have all of the benefits and immunities (A) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by any L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and Article X included any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long as the Obligations of such Lenders and (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of CreditB) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender additionally provided herein with respect to any non-replaced L/C Issuer.
(vii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if the issuance of such Letter of Credit would cause (A) the aggregate amount of Letters of Credit issued by such L/C Issuer to exceed twenty percent (20%) of the Letter of Credit Sublimit or revised letter (B) the aggregate Outstanding Amount of creditthe Revolving Loans of such Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations issued by another L/C Issuer, plus 100% of the Outstanding Amount of all L/C Obligations issued by such L/C Issuer, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans made by another Lender, plus 100% of the Swing Line Loans, if any, outstanding from such L/C Issuer, to exceed such L/C Issuer’s Revolving Commitment.
Appears in 1 contract
Samples: Credit Agreement (Ryman Hospitality Properties, Inc.)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Second Restatement Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Loan Parties, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Loan Parties and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Loan Cap, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Lead Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Second Restatement Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Standby Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Commercial Letter of Credit would occur more than 120 days after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless either such Letter of Credit is an Accelerating Lender Cash Collateralized on or prior to the date of issuance of such Letter of Credit (or such later date as to which the Agent may draw on a letter agree) or all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not issue any Letter of Credit without the prior consent of the Agent if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Second Restatement Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Second Restatement Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) such Letter of Credit is to be denominated in a currency other than Dollars; provided that if the L/C Issuer, in its benefit upon demand discretion, issues a Letter of Credit denominated in a currency other than Dollars, all reimbursements by the Borrowers of the honoring of any drawing under such Letter of Credit shall be paid in the currency in which such Letter of Credit was denominated;
(D) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the applicable issuing bank L/C Issuer (in its sole discretion) with the “Requested Draw”Borrowers or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 9.16(a)(iv)) with respect to the Defaulting Lender arising from either (x) the Letter of Credit then proposed to be issued or (y) that Letter of Credit and upon receipt all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The L/C Issuer shall not amend any Letter of any Credit if the L/C Issuer would not be permitted at such Requested Draw, apply any time to issue such amounts Letter of Credit in its amended form under the terms hereof or if the beneficiary of such Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and v) The L/C Issuer shall act on behalf of the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Kirkland's, Inc)
Letters of Credit. Upon notice (a) On the Closing Date, the Existing Letters of Credit will automatically, without any action on the part of any Person, be deemed to Administrative Agentbe Letters of Credit issued hereunder for the account of the Parent Borrower by the applicable Issuing Lender, any Applicable whether or not such Existing Letters of Credit satisfy the requirements to be issued as a Letter of Credit hereunder. Subject to and upon the terms and conditions hereof, the Parent Borrower may request that the applicable Issuing Lender that is an Accelerating Lender may draw on a letter issue letters of credit posted (the letters of credit issued on and after the Closing Date pursuant to this Section 3.1(a), the “Letters of Credit” or “L/Cs”) for the account of the Parent Borrower or any of its benefit upon demand Subsidiaries (so long as a Borrower is a co-applicant and jointly and severally liable thereunder) on any Business Day during the Tranche B-1 Revolving Commitment Period but in no event later than the 30th day prior to the applicable issuing bank Tranche B-1 Revolving Maturity Date in such form as may be approved from time to time by such Issuing Lender; provided that (the “Requested Draw”x) and upon receipt no Letter of any such Requested DrawCredit shall be issued if, apply any such amounts after giving effect to such Applicable Lender’s Advances issuance, (and 1) the Advances aggregate L/C Obligations in respect of Letters of Credit issued by it would exceed its L/C Commitment Amount or (2) the Aggregate Outstanding Revolving Credit of all Agented the Revolving Lenders with respect to such Applicable Lender). If upon receipt would exceed the Revolving Commitments of all the Requested Draw, the amount so received is Revolving Lenders then in excess of such Applicable Lender’s effect (it being understood and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to agreed that the Administrative Agent shall, to be applied as provided the extent reasonably requested by an Issuing Lender, reasonably assist such Issuing Lender in Section 7.03(a) (except that, solely calculating the aggregate L/C Obligations in respect of Letters of Credit issued by such Issuing Lender and the Aggregate Outstanding Revolving Credit of such Issuing Lender for purposes of applying such excess, the references to “Lenders” in determining compliance with clauses Second, Third (1) and Fourth (2) of such Section 7.03(athis clause (x)) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lendery) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a shall be issued by an Issuing Lender, unless the L/C Obligations in respect of Letters of Credit issued by such Issuing Lender subsequent would exceed such Xxxxxxx Xxxxxx’s L/C Commitment Amount after giving effect to the issue date issuance of such Eligible Letter of Credit or if (it being understood and agreed that the amount Administrative Agent shall calculate the Dollar Equivalent of the then outstanding Revolving Loans in any Designated Foreign Currency and the then outstanding L/C Obligations in respect of any Eligible Letter Letters of Credit needs to be adjusted denominated in amount as any Designated Foreign Currency on the date on which the Parent Borrower has given the Administrative Agent a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender L/C Request with respect to any non-replaced Letter of Credit for purposes of determining compliance with this Section 3.1).
(b) Each Letter of Credit shall (i) be denominated in Dollars or revised any Designated Foreign Currency requested by the Parent Borrower and shall be either (A) a standby letter of creditcredit issued to support obligations of the Parent Borrower or any of its Subsidiaries, contingent or otherwise (a “Standby Letter of Credit”) or (B) a commercial letter of credit in respect of the purchase of goods or services by the Parent Borrower or any of its Subsidiaries (a “Commercial L/C”) and (ii) unless cash collateralized or otherwise backstopped to the satisfaction of the applicable Issuing Lender expire no later than the earlier of (A) in the case of Standby Letters of Credit (subject to, if requested by the Parent Borrower and agreed to by the Issuing Lender, automatic renewals for successive periods not exceeding one year ending prior to the 5th day prior to the Tranche B-1 Revolving Maturity Date, as applicable), one year after its date of issuance and the 5th day prior to the Tranche B-1 Revolving Maturity Date, or (B) in the case of Commercial L/Cs, one year after its date of issuance and the 30th day prior to the Tranche B-1 Revolving Maturity Date. All Letters of Credit issued shall be denominated in Dollars or in any Designated Foreign Currency and shall be issued for the account of the Parent Borrower or any of its Subsidiaries (so long as a Borrower is a co-applicant and jointly and severally liable thereunder). Notwithstanding anything to the contrary herein, Barclays and Credit Agricole Corporate and Investment Bank shall only be required to issue Standby Letters of Credit hereunder.
(c) Unless otherwise agreed by the applicable Issuing Lender and the Parent Borrower, each Letter of Credit shall be governed by, and shall be construed in accordance with, the laws of the State of New York, and to the extent not prohibited by such laws, the ISP shall apply to each Standby Letter of Credit, and the Uniform Customs shall apply to each Commercial L/C. The ISP shall not in any event apply to this Agreement. All Letters of Credit shall be issued on a sight basis only.
(d) No Issuing Lender shall at any time issue any Letter of Credit hereunder if such issuance would conflict with, or cause such Issuing Lender or any L/C Participant to exceed any limits imposed by, any applicable Requirement of Law.
Appears in 1 contract
Samples: Credit Agreement
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the applicable issuing bank issuance of such Letter of Credit would violate one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the “Requested Draw”Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) and upon receipt such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit provides for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) a default of any Lender's obligations to fund under Section 2.03(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such amounts Lender to eliminate the L/C Issuer's risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender Article IX with respect to any non-replaced acts taken or revised letter omissions suffered by the L/C Issuer in connection with Letters of credit.Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term "Administrative
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.3, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrowers, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrowers and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total WC Revolver Outstandings shall not exceed the lesser of (i) the Total WC Revolver Commitments as in effect at such time and (ii) the Borrowing Base at such time, and (y) the aggregate Outstanding Amount of the WC Revolver Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Lender’s WC Revolver Commitment. In addition, the aggregate face amount of all standby Letters of Credit issued to secure bonding and performance obligations of the Borrowers shall not exceed at any time outstanding $10,000,000. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the request for such issuance, extension or renewal of any Letter of Credit is later than nine (9) Business Days prior to the Maturity Date;
(B) any Borrower requests a Letter of Credit be issued for any other purpose than to support purchases of Petroleum Products or to secure bonding and performance obligations;
(C) any Borrower requests a standby Letter of Credit which is to be used to support inventory purchases with an Accelerating Lender may draw on expiry date longer than 180 days from the date of issuance;
(D) any Borrower requests a letter standby Letter of Credit which is to be used to secure bonding and performance obligations with an expiry date longer than 364 days;
(E) any Borrower requests a documentary Letter of Credit be issued with an expiry date which is later than the Maturity Date or which has a term longer than ninety (90) days;
(F) subject to Section 2.3(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(G) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date or unless the Borrowers have provided to the LC Issuer cash collateral for the maximum drawing amount of such Letter of Credit prior to the Maturity Date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the applicable issuing bank issuance of such Letter of Credit would violate one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the “Requested Draw”Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, in the case of a documentary Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(D) and upon receipt such Letter of Credit is to be denominated in a currency other than Dollars; or
(E) a default of any Lender’s obligations to fund under Section 2.3(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such amounts Lender to eliminate the L/C Issuer’s risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Initial Funding Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the forgoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Initial Funding Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date; provided that Letters of Credit with an expiry date after the Letter of Credit Expiration Date may be issued (but the L/C Issuer shall have no obligation to issue) so long as the Borrower agrees to Cash Collateralize such Letter of Credit in an amount equal to at least 103% of the face amount of such Letter of Credit prior to the Letter of Credit Expiration Date in accordance with the terms of this Agreement. The Borrower hereby agrees that on or before the Letter of Credit Expiration Date it shall Cash Collateralize any Letter of Credit existing and not expiring on the Letter of Credit Expiration Date in an amount equal to at least 103% of the face amount of such Letter of Credit (and in the event the Borrower fails to do so, the Agent may require each Lender to fund its participation interest in an amount equal to such Lender’s Applicable Percentage of the outstanding Letters of Credit for purposes of Cash Collateralizing the Letters of Credit). For the avoidance of doubt, the parties hereto agree that is an Accelerating Lender may draw the obligations of the Lenders hereunder to reimburse the L/C Issuer for any Unreimbursed Amount with respect to any Letter of Credit shall terminate on a letter the Maturity Date with respect to drawings occurring after that date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good fxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) such Letter of Credit is to be denominated in a currency other than Dollars; or
(D) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the applicable issuing bank L/C Issuer (in its sole discretion) with the “Requested Draw”Borrower or such Defaulting Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and upon receipt all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) The L/C Issuer shall act on behalf of the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Alexander & Baldwin Holdings, Inc.)
Letters of Credit. Upon notice to Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw on a letter (a) The Letter of credit posted for its benefit upon demand Credit Commitment.
(i) Subject to the applicable issuing bank terms and conditions set forth herein, the Lender agrees (A) from time to time on any Business Day during the “Requested Draw”period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and upon receipt (B) to honor drawings under the Letters of Credit; provided that after giving effect to any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Credit Extension with respect to such Applicable Lender). If upon receipt any Letter of Credit, (y) the Total Outstandings shall not exceed the Commitment or (z) the Outstanding Amount of the Requested Draw, L/C Obligations shall not exceed the amount so received is in excess Letter of such Applicable Lender’s (and its Agented Lender’s) Advances (Credit Sublimit. Each request by the Borrower for the issuance or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes amendment of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth a Letter of such Section 7.03(a) will Credit shall be deemed to refer be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to all Lenders other the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The Lender shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension; or
(B) the expiry date of such Applicable requested Letter of Credit would occur after the Letter of Credit Expiration Date.
(iii) The Lender and shall not be under any Agented obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Lender from issuing such Letter of Credit, or any Law applicable to the Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Lender shall prohibit, or request that the Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Lender with respect to such Applicable LenderLetter of Credit any restriction, reserve or capital requirement (for so long as which the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Lender any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Lender in good xxxxx xxxxx material to any Eligible it;
(B) the issuance of such Letter of Credit because it has become a Lender subsequent to would violate one or more policies of the issue date of Lender;
(C) except as otherwise agreed by the Lender, such Eligible Letter of Credit or if the is in an initial stated amount of any Eligible less than $25,000;
(D) such Letter of Credit needs is to be adjusted denominated in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise currency other than Dollars; or
(E) such Eligible Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The Lender shall be under no obligation to allow amend any Letter of Credit if (A) the Lender would have no obligation at such Applicable Lender time to be a named issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary thereunder (or to revise the amounts of such Eligible Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.; Auto-
Appears in 1 contract
Samples: Credit Agreement (TRX Inc/Ga)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Applicable Business Day during the period from the Closing Date until the earlier to occur of the Letter of Credit Expiration Date or the termination of the Availability Period, to issue Letters of Credit at the request of the Borrower Agent for the account of a Borrower (or any other Loan Party or Domestic Subsidiary thereof as to which all “know your customer” or other similar requirements have been satisfied) so long as such Borrower is a joint and several co-applicant; references to a “Borrower” in this Section 2.03 shall be deemed to include reference to such other Loan Party and any applicable Domestic Subsidiary, as the case may be, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the a Borrower and any drawings thereunder; provided that the Letter of Credit Issuer shall not be obligated to make any Letter of Credit Extension with respect to any Letter of Credit, and no Revolving Credit Lender shall be obligated to participate in any Letter of Credit, if as of the date of such Letter of Credit Extension, (A) the Total Revolving Credit Outstandings would exceed the Maximum Borrowing Amount, (B) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Revolving Credit Lender’s Revolving Credit Commitment, or (C) the Outstanding Amount of all Letter of Credit Obligations would exceed the Letter of Credit Sublimit. Each request by the Borrower Agent for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower Agent that is an Accelerating Lender may draw on a letter the Letter of Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The Letter of Credit Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur (i) as to standby Letters of Credit, more than twelve months after the date of issuance or last renewal, and (ii) as to commercial Letters of Credit, later than the earlier of (1) 270 days after the date of issuance thereof and (2) 60 days before the Letter of Credit Expiration Date, unless in each case the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date;
(iii) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit or any Law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer;
(C) such Letter of Credit is in an initial amount less than the Dollar Equivalent of $10,000; or
(D) any Lender is at that time a Defaulting Lender, unless the Letter of Credit Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the applicable issuing bank Letter of Credit Issuer (in its sole discretion) with the “Requested Draw”Borrowers or such Lender to eliminate the Letter of Credit Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and upon receipt all other Letter of Credit Obligations as to which the Letter of Credit Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof.
(v) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) The Letter of Credit Issuer shall act on behalf of the Advances of all Agented Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the Letter of Credit Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes Article X included the Letter of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender Credit Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditIssuer.
Appears in 1 contract
Samples: Credit Agreement (Matrix Service Co)
Letters of Credit. (a) Subject to the terms and conditions set forth in this Agreement, at any time and from time to time from the Closing Date through the day that is ninety (90) days prior to the Maturity Date, the Issuing Lender shall issue such Letters of Credit as Borrowers may request upon the delivery of a written request in the form of Exhibit G (a “Letter of Credit Request”) to the Issuing Lender, provided that (i) no Default or Event of Default shall have occurred and be continuing, (ii) upon issuance of such Letter of Credit, the aggregate Letter of Credit Liabilities shall not exceed the Letter of Credit Commitment, (iii) in no event shall the Aggregate Real Estate Revolving Credit Obligations (after giving effect to any requested Letters of Credit) exceed the lesser of the Total Real Estate Revolving Loan Commitment and the Real Estate Borrowing Base Availability or cause a violation of the covenant set forth in Section 9.1, (iv) the conditions set forth in Sections 10 and 11 shall have been satisfied, and (v) in no event shall any amount drawn under a Letter of Credit be available for reinstatement or a subsequent drawing under such Letter of Credit. Notwithstanding anything to the contrary contained in this Section 2.9, the Issuing Lender shall not be obligated to issue, amend, extend, renew or increase any Letter of Credit at a time when any other Real Estate Revolving Loan Lender is a Defaulting Lender, unless the Issuing Lender is satisfied that the participation therein will otherwise be fully allocated to the Real Estate Revolving Loan Lenders that are Non-Defaulting Lenders consistent with Section 2.12(c) and the Defaulting Lender shall have no participation therein, except to the extent the Issuing Lender has entered into arrangements with Borrowers or such Defaulting Lender which are satisfactory to the Issuing Lender in its good faith determination to eliminate the Issuing Xxxxxx’s Fronting Exposure with respect to any such Defaulting Lender, including the delivery of cash collateral. The Issuing Lender may assume that the conditions in Sections 10 and 11 have been satisfied unless it receives written notice from a Real Estate Revolving Loan Lender that such conditions have not been satisfied. Each Letter of Credit Request shall be executed by an Authorized Officer of Parent. The Issuing Lender shall be entitled to conclusively rely on such Person’s authority to request a Letter of Credit on behalf of Borrowers. The Issuing Lender shall have no duty to verify the authenticity of any signature appearing on a Letter of Credit Request. Each Borrower assumes all risks with respect to the use of the Letters of Credit. Unless the Issuing Lender and the Majority Real Estate Revolving Loan Lenders otherwise 62 US_Active\120558968\V-3 US_ACTIVE\122519032\V-4 consent, the term of any Letter of Credit shall not exceed a period of time commencing on the issuance of the Letter of Credit and ending one (1) year after the date of issuance thereof, subject to extension pursuant to an “evergreen” clause acceptable to Administrative Agent and the Issuing Lender (but in any event the term shall not extend beyond five (5) Business Days prior to the Maturity Date). The amount available to be drawn under any Letter of Credit shall reduce on a dollar-for-dollar basis the amount available to be drawn under the Total Real Estate Revolving Loan Commitment as a Real Estate Revolving Loan.
(b) Each Letter of Credit Request shall be submitted to the Issuing Lender at least five (5) Business Days (or such shorter period as the Issuing Lender may approve) prior to the date upon which the requested Letter of Credit is to be issued. Each such Letter of Credit Request shall contain (i) a statement as to the purpose for which such Letter of Credit shall be used (which purpose shall be in accordance with the terms of this Agreement), and (ii) a certification by the chief financial officer of Parent that the Loan Parties are and will be in compliance with all covenants under the Loan Documents after giving effect to the issuance of such Letter of Credit. Borrowers shall further deliver to the Issuing Lender such additional applications (the form of application as of the date hereof being attached hereto as Exhibit H) and documents as the Issuing Lender may require, in conformity with the then standard practices of its letter of credit department, in connection with the issuance of such Letter of Credit; provided that in the event of any conflict, the terms of this Agreement shall control.
(c) The Issuing Lender shall, subject to the conditions set forth in this Agreement, issue the Letter of Credit on or before five (5) Business Days following receipt of the documents last due pursuant to Section 2.9(b). Each Letter of Credit shall be in form and substance reasonably satisfactory to the Issuing Lender in its reasonable discretion.
(d) Upon notice the issuance of a Letter of Credit, each Real Estate Revolving Loan Lender shall be deemed to have purchased a participation therein from the Issuing Lender in an amount equal to its respective Real Estate Revolving Loan Commitment Percentage of the amount of such Letter of Credit. No Real Estate Revolving Loan Lender’s obligation to participate in a Letter of Credit shall be affected by any other Real Estate Revolving Loan Lender’s failure to perform as required herein with respect to such Letter of Credit or any other Letter of Credit.
(e) Upon the issuance of each Letter of Credit, Borrowers shall pay to the Issuing Lender (i) for its own account, a Letter of Credit fronting fee calculated at the rate equal to one-eighth of one percent (0.125%) of the face amount of such Letter of Credit (which fee shall not be less than $1,500 in any event) and an administrative charge of $250, and (ii) for the accounts of the Real Estate Revolving Loan Lenders that are Non-Defaulting Lenders (including the Issuing Lender) in accordance with their respective percentage shares of participation in such Letter of Credit, a Letter of Credit fee calculated at the rate per annum equal to the sum of Adjusted Term SOFR plus Applicable Margin then applicable to LIBORSOFR Rate Loans on the face amount of such Letter of Credit. Such fees shall be payable in quarterly installments in arrears with respect to each Letter of Credit on the first day of each calendar quarter following the date of issuance and continuing on each quarter or portion thereof thereafter, as applicable, or on any earlier date on which the Real Estate Revolving Loan Commitments shall terminate and on the expiration or return of any Letter of Credit. In addition, Borrowers shall pay to the Issuing Lender for its own account within five (5) days of demand of the Issuing Lender the standard issuance, documentation and service charges for Letters of Credit issued from time to time by the Issuing Lender.
(g) If after the issuance of a Letter of Credit pursuant to Section 2.9(c) by the Issuing Lender, but prior to the funding of any portion thereof by a Real Estate Revolving Loan Lender, for any reason a drawing under a Letter of Credit cannot be refinanced as an Real Estate Revolving Loan, each Real Estate Revolving Loan Lender will, on the date such Real Estate Revolving Loan pursuant to Section 2.9(f) was to have been made, purchase an undivided participation interest in the Letter of Credit in an amount equal to its Real Estate Revolving Loan Commitment Percentage of the amount of such Letter of Credit. Each Real Estate Revolving Loan Lender will immediately transfer to the Issuing Lender in immediately available funds the amount of its participation and upon receipt thereof the Issuing Lender will deliver to such Real Estate Revolving Loan Lender a Letter of Credit participation certificate dated the date of receipt of such funds and in such amount.
(h) Whenever at any time after the Issuing Lender has received from any Real Estate Revolving Loan Lender any such Real Estate Revolving Loan Lender’s payment of funds under a Letter of Credit and thereafter the Issuing Lender receives any payment on account thereof, then the Issuing Lender will distribute to such Real Estate Revolving Loan Lender its participation interest in such amount (appropriately adjusted in the case of interest payments to reflect the period of time during which such Real Estate Revolving Loan Lender’s participation interest was outstanding and funded); provided, however, that in the event that such payment received by the Issuing Lender is required to be returned, such Real Estate Revolving Loan Lender will return to the Issuing Lender any portion thereof previously distributed by the Issuing Lender to it.
(i) The issuance of any supplement, modification, amendment, renewal or extension to or of any Letter of Credit shall be treated in all respects the same as the issuance of a new Letter of Credit.
(j) Each Borrower assumes all risks of the acts, omissions, or misuse of any Letter of Credit by the beneficiary thereof. Neither Administrative Agent, the Issuing Lender nor any Real 64 US_Active\120558968\V-3 US_ACTIVE\122519032\V-4 Estate Revolving Loan Lender will be responsible for (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or any document submitted by any party in connection with the issuance of any Letter of Credit, even if such document should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the form, validity, sufficiency, accuracy, genuineness or legal effect of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of any beneficiary of any Letter of Credit to comply fully with the conditions required in order to demand payment under a Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document or draft required by or from a beneficiary in order to make a disbursement under a Letter of Credit or the proceeds thereof; (vii) for the misapplication by the beneficiary of any Letter of Credit of the proceeds of any drawing under such Letter of Credit; and (viii) for any consequences arising from causes beyond the control of Administrative Agent or any Real Estate Revolving Loan Lender. None of the foregoing will affect, impair or prevent the vesting of any of the rights or powers granted to Administrative Agent, any Applicable the Issuing Lender that is an Accelerating Lender may draw on a letter of credit posted for its benefit upon demand to or the applicable issuing bank (the “Requested Draw”) Real Estate Revolving Loan Lenders hereunder. In furtherance and upon receipt extension and not in limitation or derogation of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Drawforegoing, any act taken or omitted to be taken by Administrative Agent, the amount so received is Issuing Lender or the other Real Estate Revolving Loan Lenders in excess of such Applicable Lender’s (good faith will be binding on Borrowers and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the will not put Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excessAgent, the references Issuing Lender or the other Real Estate Revolving Loan Lenders under any resulting liability to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed Borrowers; provided nothing contained herein shall relieve the Issuing Lender for liability to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount Borrowers arising as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, gross negligence or willful misconduct of the Loan Parties and Issuing Lender as determined by a court of competent jurisdiction after the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter exhaustion of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditall applicable appeal periods.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (American Healthcare REIT, Inc.)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.04(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if: 28
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is an Accelerating Lender may draw not otherwise compensated hereunder) not in effect on a the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
(B) the issuaxxx xx xxxx Letter of Credit would violate one or more policies of the L/C Issuer applicable to all of such L/C Issuer's letter of credit posted for its benefit upon demand applicants;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(D) such Letter of Credit is to the applicable issuing bank be denominated in a currency other than Dollars;
(the “Requested Draw”E) and upon receipt a default of any Lender's obligations to fund under Section 2.04(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such amounts Lender to eliminate the L/C Issuer's risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term "Administrative 29 Agent" as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article X included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Applicable Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of any Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of any Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (1) the Total Outstandings shall not exceed the Aggregate Commitments, (2) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment, (3) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit and (4) the Outstanding Amount of the L/C Obligations under Financial Letters of Credit shall not exceed the Financial Letter of Credit Sublimit. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly any Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless the Borrowers shall have made arrangements acceptable to the L/C Issuer to Cash Collateralize such Letter of Credit.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or the Letter of Credit in particular or shall impose upon demand the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable issuing bank on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the “Requested Draw”issuance of the Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (except as otherwise agreed by the Administrative Agent and the Advances L/C Issuer, the Letter of Credit is in an initial stated amount less than the Dollar Equivalent of $1,000,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(E) any Revolving Credit Lender is at that time a Defaulting Lender, unless (a) the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with such Revolving Credit Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all Agented other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion or (b) the Borrowers have delivered Cash Collateral as required pursuant to Section 2.15(a); or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) Subject to Administrative Agentthe terms and conditions hereof, any Applicable Lender that is an Accelerating Lender may draw on a letter the Working Capital Commitments may, in addition to the Working Capital Loans provided for in Section 2.01 hereof, be utilized, upon the request of the Company, by the issuance of letters of credit posted for its benefit upon demand to the applicable issuing bank (the “Requested Draw”i) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, by Chase for so long as it is Administrative Agent hereunder if the Obligations Company shall so request in the notice referred to in Section 2.02(b) and Chase shall agree that such letter of credit shall be issued by Chase rather than by each of the Lenders (such letters of credit issued by Chase being hereinafter referred to as the "PARTICIPATION LETTERS OF CREDIT"), or (ii) by the Lenders pursuant to which each Lender shall be severally obligated to pay its Working Capital Commitment Percentage of any drawing made thereunder (such letters of credit issued by the Lenders being hereafter referred to as the "SYNDICATED LETTERS OF CREDIT", and the Syndicated Letters of Credit and Participation Letters of Credit being collectively referred to as the "LETTERS OF CREDIT"). Upon the date of issuance of a Participation Letter of Credit, Chase shall be deemed, without further action by any party hereto, to have sold to each Lender, and each Lender shall be deemed, without further action by any party hereto, to have purchased from Chase, a participation to the extent of such Lenders (other than Lender's Working Capital Commitment Percentage in such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Participation Letter of Credit because it has become a Lender subsequent and the related Letter of Credit Liabilities. The aggregate amount of all Working Capital Obligations shall not at any time exceed the lesser of (i) the aggregate of the Working Capital Commitments as reduced from time to time pursuant to Section 2.03 hereof and (ii) the Borrowing Base. The aggregate amount of all Letter of Credit Liabilities shall not at any time exceed an amount equal to the issue lesser of (i) the aggregate amount of the Working Capital Commitments as reduced from time to time pursuant to Section 2.03 hereof and (ii) $7,500,000.
(b) The Company shall give the Administrative Agent at least seven Business Days' (in the case of Syndicated Letters of Credit) or three Business Days' (in the case of Participation Letters of Credit) irrevocable prior notice (effective upon receipt) specifying the date such Letter of Credit is to be issued, whether it is requesting that such Eligible Letter of Credit be a Participation Letter of Credit or if a Syndicated Letter of Credit, and describing the proposed terms of such Letter of Credit and the nature of the transactions proposed to be supported thereby. Upon receipt of such notice the Administrative Agent shall promptly notify each Lender of the contents thereof and of such Lender's Working Capital Commitment Percentage of the amount of any Eligible such proposed Letter of Credit needs and, in the case of Syndicated Letters of Credit, not later than five Business Days prior to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise requested issuance date for such Eligible Letter of Credit shall prepare and send to allow such Applicable Lender to be the Lenders and the Company a named beneficiary thereunder (or to revise the amounts proposed form of such Eligible Letters Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.
Appears in 1 contract
Letters of Credit. Upon (a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $50,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such Lender to eliminate the L/C Issuer’s risk with respect to such Lender.
(iv) L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Applicable Lender or the Borrower that is an Accelerating Lender may draw on a letter one or more of credit posted for its benefit upon demand to the applicable issuing bank conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(the “Requested Draw”iv) and upon receipt Promptly after its delivery of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs amendment to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (an advising bank with respect thereto or to revise the amounts beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Eligible Letters Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced Credit or revised letter of creditamendment.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or, with the consent of the Administrative Agent, its Subsidiaries, and to amend Letters of Credit previously issued [*] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the lesser of (1) the Borrowing Base and (2) Revolving Credit Facility, (y) the aggregate Outstanding Amount of the Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable issuing bank to letters of credit generally; [*] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.
(C) except as otherwise agreed by the “Requested Draw”Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000;
(D) and upon receipt the L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency;
(E) such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency; or
(F) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such amounts Lender to eliminate the L/C Issuer’s risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in US Dollars or in one or more Alternative Currencies for the account of the Company, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Company and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings will not exceed the Aggregate Commitments, (w) the Outstanding Amount of all Committed Loans, all Bid Loans and all Letters of Credit denominated in Alternative Currencies will not exceed the Alternative Currency Sublimit, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans will not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations will not exceed the Letter of Credit Sublimit. Each request by the Company for the issuance or amendment of a Letter of Credit will be deemed to be a representation by the Company that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit will be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer will not issue any Letter of Credit, if:
(A) subject to Section 2.04(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer will not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator will by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer will prohibit, or request that the L/C Issuer refrain from, 36 the issuance of letters of credit posted generally or such Letter of Credit in particular or will impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or will impose upon demand the L/C Issuer any unreimbursed loss, cost or expense that was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate any one or more of only those policies of the L/C Issuer that do not conflict with the express terms of this Agreement;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is to be denominated in a currency other than US Dollars or an Alternative Currency;
(D) the L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency; or
(E) any Lender is at that time a Defaulting Lender, unless the Company Cash Collateralizes the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the applicable issuing bank Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The L/C Issuer will not amend any Letter of Credit if the “Requested Draw”L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) and upon receipt The L/C Issuer will be under no obligation to amend any Letter of any Credit if (A) the L/C Issuer would have no obligation at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) The L/C Issuer will act on behalf of the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer will have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Starbucks Corp)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.03, (1) from time to time on any Applicable Lender Business Day during the period from the Second Restatement Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Restricted Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Restricted Subsidiaries and any drawings thereunder; provided that is an Accelerating Lender may draw on after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (i) the Total Outstandings shall not exceed the lesser of (x) the Borrowing Base and (y) the Aggregate Commitments and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment. Each request by the Borrower for the issuance or amendment of a letter Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date;
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date; or
(C) after giving effect to such issuance, the Total Outstandings shall exceed the lesser of (i) the Borrowing Base and (ii) the Aggregate Commitments.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or such Letter of Credit in particular or shall impose upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Issuer with respect to such Applicable Lender). If Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Second Restatement Effective Date, or shall impose upon receipt the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Second Restatement Effective Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate any Laws or one or more policies of the Requested Draw, the amount so received is in excess L/C Issuer applicable to letters of such Applicable Lender’s credit generally;
(and its Agented Lender’sC) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial face amount less than $100,000;
(D) such Letter of Credit is to be applied as provided denominated in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders a currency other than Dollars;
(E) such Applicable Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) any Lender and any Agented is at such time a Defaulting Lender or an Impacted Lender, unless the L/C Issuer has entered into arrangements, satisfactory to the L/C Issuer, with the Borrower or such Lender, including the provision of sufficient Cash Collateral or other credit support acceptable to the L/C Issuer, to eliminate the L/C Issuer’s actual Disproportionate Facility Risk with respect to such Applicable Lender, for so long Lender as to the Obligations Letter of such Lenders (other than such Applicable Lender and any Agented Lender Credit then proposed to be issued; provided that to the extent the Borrower provides sufficient Cash Collateral to the L/C Issuer to eliminate the L/C Issuer’s Disproportionate Facility Risk with respect to such Applicable Lender) have not been indefeasibly paid in full). In Lender as to the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become then proposed to be issued, such provision of Cash Collateral shall be deemed to be a Lender subsequent satisfactory arrangement to the issue date of such Eligible L/C Issuer.
(iv) The L/C Issuer shall not amend any Letter of Credit or if the amount of any Eligible L/C Issuer would not be permitted at such time to issue such Letter of Credit needs in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to allow issue such Applicable Lender to be a named Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary thereunder (or to revise the amounts of such Eligible Letters Letter of Credit does not accept the proposed amendment to such Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.
Appears in 1 contract
Samples: Credit Agreement (Holly Corp)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each of the L/C Issuers agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Applicable Lender Business Day during the period from the Closing Date until the day that is seven days prior to the latest Maturity Date for the Revolving Credit Facility then in effect, to issue Letters of Credit for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (v) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (w) the Total Revolving Credit Outstandings shall not exceed the Borrowing Base in effect at such time, (x) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans, shall not exceed such Lender’s Revolving Credit Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit, (z) the Outstanding Amount of the L/C Obligations related to Letters of Credit issued by Xxxxx Fargo shall not exceed $50,000,000, and (aa) the Outstanding Amount of the L/C Obligations related to Letters of Credit issued by Bank of America, N.A. shall not exceed $0. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) No L/C Issuer shall issue any Letter of Credit, if, subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would (excluding automatic extensions in the applicable Letter of Credit, which extensions are subject to annual cancellation in accordance with the terms of an Accelerating Lender may draw on a letter Auto-Extension Letter of Credit) occur after the Letter of Credit Expiration Date.
(iii) No L/C Issuer shall be under any obligation to issue, renew, extend, or increase any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which an L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and the applicable L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars; or
(E) any Lender is at such time a Defaulting Lender hereunder, unless either (1) the Borrower has delivered to the applicable issuing bank Administrative Agent Cash Collateral in an amount equal to each L/C Issuer’s Fronting Exposure (the “Requested Draw”after giving effect to Section 2.16(a)(iv) and upon receipt of any other Cash Collateral then held) with respect to the Defaulting Lender or (2) such Requested Draw, apply any such amounts L/C Issuer has otherwise entered into arrangements satisfactory to such Applicable L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender’s Advances , in either case, arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has Fronting Exposure, as it may elect in its sole discretion.
(and iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the Advances terms hereof.
(v) No L/C Issuer shall be under any obligation to amend any Letter of all Agented Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) Each L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and such Applicable Lender). If upon receipt L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying Article IX included such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice to Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw on 5.2.1 BroadVision previously delivered a letter of credit posted to PSI (which included a confirmation thereof) under the Master Lease in the amount of Fourteen Million Four Hundred Three Thousand Seven Hundred Seventy-Six and No/100 dollars ($14,403,776.00) (“Existing LC”). As consideration for its benefit upon demand PSI’s execution of this Agreement and PSI’s obligations hereunder, on or before the Transfer Date, BroadVision shall cause the Existing LC to be modified by the applicable issuing bank (and confirming banks to provide, in addition to any and all rights PSI has under the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders Master Lease with respect to such Applicable Lenderthe Existing LC, (i) that, if required by PSI’s lender(s). If , (a) PSI and PSI’s lender(s) shall be co-beneficiaries under the Existing LC or (b) PSI’s lender(s) shall the beneficiary(ies) under the Existing LC, (ii) that the beneficiary(ies) may draw on the Existing LC, in whole or in part, if (a) BroadVision fails to pay either the First Installment or the Second Installment, as provided for herein, or (b) a bankruptcy or other similar insolvency proceeding (e.g., an assignment for the benefit of creditors) under state law is commenced by or against BroadVision, (iii) that the beneficiary(ies) may draw on the Existing LC upon receipt the presentment of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts Existing LC to the Administrative Agent issuing or confirming bank accompanied by a sight draft and letter from the beneficiary(ies) stating that it (they) is (are) entitled to be applied as provided in Section 7.03(adraw on the Existing LC, and (iv) (except thatfor a final expiry date no sooner than June 30, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full)2005. In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent Such modification to the issue date Existing LC shall be at the sole cost and expense of such Eligible Letter BroadVision.
5.2.2 As consideration for PSI’s execution of Credit this Agreement and PSI’s obligations hereunder, on or if before the Transfer Date, BroadVision shall deliver an unconditional, irrevocable, standby letter of credit, in the amount of any Eligible Letter of Credit needs Three Million Six Hundred Ninety-Six Thousand Two Hundred Twenty-Four and No/100 Dollars ($3,696,224.00), in a form and issued or confirmed by a commercial money center bank reasonably satisfactory to be adjusted PSI with retail branches in amount San Francisco, California, designating either (1) PSI as beneficiary or (2) if required by PSI’s lender(s), (a) PSI and PSI’s lender(s) as co-beneficiaries, or (b) PSI’s lender(s) as beneficiary(ies) (“New LC”). The New LC shall further provide that the beneficiary(ies) may draw on the New LC, in whole or in part, if (a) BroadVision shall fail to pay either the First Installment or the Second Installment, as provided for in this Agreement, (b) a result of bankruptcy or other similar insolvency proceeding (e.g., an assignment among Lenders for the benefit of creditors) under state law is commenced by or against BroadVision, (c) BroadVision shall fail to honor its indemnification obligations to PSI under Article 11 of this Agreement, or (d) BroadVision shall fail to pay the Termination Payment, as defined in the New Lease, in the event BroadVision shall have exercised its termination right under the New Lease. The New LC shall (1) have a final expiry date no sooner than June 30, 2005, and (2) provide that alters is governed by the Pro Rata Basis among LendersUniform Customs and Practice for Documentary Credits (1993 revisions) International Chamber of Commerce Publication 500 or International Standard Practice 1998 (ISP 98), International Chamber of Commerce Practice, Publication No. 590. The beneficiary(ies) may draw on the Loan Parties New LC upon the presentment of the New LC to the issuing bank accompanied by a sight draft and letter from the beneficiary(ies) stating that it (they) is (are) entitled to draw on the New LC.
5.2.3 The proceeds of any draw under the New LC or the Existing LC shall be for the sole benefit and account of, and may be retained (unconditionally) by, PSI or PSI’s lender(s).
5.2.4 Within one hundred (100) days following PSI’s receipt of both the First Installment and the assigning Lender Second Installment, PSI shall use commercially reasonable efforts return (1) the New LC, less any amounts previously drawn under the New LC because of BroadVision’s failure to replace honor its indemnification obligations to PSI under Article 11 of this Agreement, and (2) the Existing LC, to BroadVision. Notwithstanding the foregoing, if BroadVision elects to exercise its right to make the Termination Payment as provided for under the New Lease, then PSI or revise such Eligible Letter PSI’s lender(s) shall retain the New LC, less any amounts previously drawn under the New LC because of Credit BroadVision’s failure to allow such Applicable Lender honor its indemnification obligations to be a named beneficiary thereunder (or to revise the amounts PSI under Article 11 of such Eligible Letters of Credit) this Agreement as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender support for such Agented Lender with respect to any non-replaced or revised letter of creditTermination Payment, and PSI shall return the same upon its expiration as provided for herein.
Appears in 1 contract
Samples: Assignment and Assumption of Master Lease (Broadvision Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Applicable Lender Business Day during the period from the Closing Date until the date that is an Accelerating five (5) Business Days prior to the Maturity Date, to issue Letters of Credit for the account of Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the Revolving Credit Exposure of any Lender may draw on shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by Borrower for the issuance or amendment of a letter Letter of Credit shall be deemed to be a representation by Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) No L/C Issuer shall issue, increase or extend any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twenty-four (24) months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by such L/C Issuer, such Letter of Credit is in an initial stated amount less than $10,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars; or
(E) any Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its benefit upon demand sole discretion) with Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the applicable issuing bank Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the “Requested Draw”terms hereof.
(v) and upon receipt No L/C Issuer shall be under any obligation to amend any Letter of any Credit if (A) such Requested DrawL/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) Each L/C Issuer shall act on behalf of the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying Article IX included such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Head Lessee shall provide on or before the Closing Date and maintain so long as any Head Lessee Secured Obligations remain Outstanding, one or more Eligible Letters of Credit, for the benefit of the Indenture Trustee (as assignee of the Head Lessor) on behalf of the Noteholders and the other Entitled Parties, in an aggregate amount available thereunder on any date not less than the amount applicable to Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw such date on Schedule 10).
(b) If the amounts on deposit in the Rent Reserve Account on a letter of credit posted for its benefit upon demand Determination Date are less than the Aggregate Reserve Amount on such date, then the Indenture Trustee shall, in accordance with the Manager Report (or, if the Manager fails to deliver the Manager Report, pursuant to written instructions from the Control Party), submit to the applicable issuing bank Letter of Credit Bank a completed Drawing Certificate (as defined in the “Requested Draw”Letter of Credit) requesting a drawing under the Letter of Credit in an amount equal to the Available Drawing Amount (a "Letter of Credit Drawing"); provided, however, that in no event shall the amount of any Letter of Credit Drawing exceed the Available Drawing Amount under such Letter of Credit.
(c) The Indenture Trustee shall receive Letter-of-Credit Drawings as attorney-in-fact of each for the Entitled Parties and upon receipt thereof shall immediately deposit such Letter-of-Credit Drawings into the Rent Reserve Account and any such Letter-of-Credit Drawings shall be used only for the purpose for which it was drawn to fund the Rent Reserve Account, to make Monthly Lease Payments and to pay the Operations Fee. The making of a Letter-of-Credit Drawing does not relieve the Head Lessee of any such Requested Drawobligation under the Head Lease or any other Related Documents.
(d) If at any time while the Head Lessee Secured Obligations remain unpaid the Letter of Credit Bank shall not be an Eligible Bank, apply any such amounts to such Applicable Lender’s Advances the Head Lessee shall (and unless the Advances Control Party shall otherwise consent) within the time period required by Section 15 of all Agented Lenders the Reimbursement Agreement, replace the then existing Letter of Credit with respect to such Applicable Lender)a substitute Eligible Letter of Credit. If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts Head Lessee shall fail to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not deliver a named beneficiary to any replacement Eligible Letter of Credit because it has become a Lender subsequent within the time period required under Section 15 of the Reimbursement Agreement, the Indenture Trustee shall submit to the issue date Letter of Credit Bank a completed Drawing Certificate for the remaining Available Drawing Amount under such Letter of Credit. Any amounts received by the Indenture Trustee as a result of any such drawing shall be deposited into the Rent Reserve Account and disbursed in accordance with the provisions of Section 7.4 hereof. Upon receipt by the Indenture Trustee of a replacement Eligible Letter of Credit or if in accordance with the amount provisions of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lendersthis Section 7.5(d), the Loan Parties and Indenture Trustee shall surrender the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible original of the replaced Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditissuer thereof.
Appears in 1 contract
Samples: Head Lessee Security Agreement (Universal Compression Inc)
Letters of Credit. Upon (a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (x) the Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, shall not exceed such Lender’s Revolving Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit, and (z) at any time on or after January 31, 2015, if the Borrower Collateral Limit has not been increased to $750,000,000, the Total Outstandings shall not exceed $900,000,000. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of the Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $25,000, in the case of a standby Letter of Credit;
(D) except as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in ARTICLE IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in ARTICLE IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the L/C Issuer, by personal delivery or by any other means acceptable to the L/C Issuer. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in ARTICLE IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or its applicable Subsidiary, as the case may be, or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Applicable Lender Lender, or the Borrower that is an Accelerating Lender may draw on a letter one or more of credit posted for its benefit upon demand to the applicable issuing bank conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension or (C) the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess expiry date of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible extended Letter of Credit because it would be later than the Letter of Credit Expiration Date, and the Borrower has become a Lender subsequent to not Cash Collateralized the issue date Outstanding Amount of the L/C Obligations as of such Eligible extension date in respect of such Letter of Credit.
(iv) Promptly after its delivery of any Letter of Credit or if the amount of any Eligible Letter of Credit needs amendment to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (an advising bank with respect thereto or to revise the amounts beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Eligible Letters Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced Credit or revised letter of creditamendment.
Appears in 1 contract
Samples: Credit Agreement (Equinix Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein: (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.04, (1) from time to time on any Applicable Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with paragraph (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided, however, that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Commitments, (y) the Revolving Credit Exposure of any Revolving Credit Lender shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.04(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or the Letter of Credit in particular or shall impose upon demand the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable issuing bank on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the “Requested Draw”issuance of the Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (except as otherwise agreed by the Administrative Agent and the Advances L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars; or
(E) any Revolving Credit Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all Agented other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Meredith Corp)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii) and the inclusion of automatic extension provisions referenced therein, the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or the Letter of Credit in particular or shall impose upon demand the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable issuing bank on the Closing Date and which the L/C Issuer in good fxxxx xxxxx material to it;
(B) the “Requested Draw”issuance of the Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (except as otherwise agreed by the Administrative Agent and the Advances L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all Agented other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (DST Systems Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section, (1) from time to time on any Applicable Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the account of the Borrower or any Restricted Subsidiary, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Restricted Subsidiaries and any drawings thereunder; provided, that, after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Revolving Facility, (y) the Revolving Exposure of any Revolving Lender shall not exceed such Lender’s Revolving Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto and deemed L/C Obligations, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) No L/C Issuer shall issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iv), the expiry date of the requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing the Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or the Letter of Credit in particular or shall impose upon demand such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable issuing bank on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the “Requested Draw”issuance of the Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and upon receipt such L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $50,000, in the case of a standby Letter of Credit;
(D) except as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is to be denominated in a currency other than Dollars; or
(E) any Revolving Lender is at that time a Defaulting Lender, unless such Requested DrawL/C Issuer has entered into arrangements, apply any such amounts including the delivery of Cash Collateral, satisfactory to such Applicable LenderL/C Issuer (in its sole discretion) with the Borrower or such Revolving Lender to eliminate such L/C Issuer’s Advances actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the Advances Letter of all Agented Credit in its amended form under the terms hereof.
(v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) Each L/C Issuer shall act on behalf of the Revolving Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying Article IX included such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Ducommun Inc /De/)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender's Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
(B) the issuance of suxx Xxxxxx xf Credit would violate one or more policies of the L/C Issuer applicable issuing bank to letters of credit generally;
(C) except as otherwise agreed by the “Requested Draw”Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less $500,000;
(D) and upon receipt such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) a default of any Lender's obligations to fund under Section 2.03(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such amounts Lender to eliminate the L/C Issuer's risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term "Administrative Agent" as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. The Existing Letter of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) No L/C Issuer shall issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the applicable L/C Issuer from issuing the Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or the Letter of Credit in particular or shall impose upon demand such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable issuing bank on the Closing Date and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the “Requested Draw”issuance of the Letter of Credit would violate one or more policies of the applicable L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and upon receipt the applicable L/C Issuer, the Letter of Credit is in an initial stated amount less than $500,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Lender is at that time a Defaulting Lender, unless the applicable L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; provided, however, a Bond Letter of Credit may provide that (1) after any drawing thereunder to pay interest on Bonds, the stated amount of such Bond Letter of Credit shall be automatically reinstated in the amount of such drawing after a specified period of time unless, prior to the expiration of such period, the beneficiary of such Bond Letter of Credit has received notice from the L/C Issuer that it has not been reimbursed for such drawing; and (2) after any Liquidity Drawing thereunder, the stated amount of such Bond Letter of Credit shall be automatically reinstated in an amount equal to the principal amount of any Bonds previously purchased with the proceeds of such Requested DrawLiquidity Drawing that have been remarketed to investors where the proceeds of such remarketing have been received by applicable L/C Issuer and applied to the repayment of the Unreimbursed Amount, apply any such amounts Committed Loans or Liquidity Advances related to such Applicable Lender’s Advances Liquidity Drawing.
(and iv) The applicable L/C Issuer shall not amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the Advances Letter of all Agented Credit in its amended form under the terms hereof.
(v) The applicable L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) Each L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying Article IX included such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of crediteach L/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Tri-State Generation & Transmission Association, Inc.)
Letters of Credit. Upon notice In order to Administrative Agentassist the Borrowing Companies, or any Applicable Lender that is one of them, in establishing or opening Letters of Credit with an Accelerating Lender may draw on a letter Issuing Bank, the Companies have requested CIT to join in the applications for such Letters of Credit, and/or guarantee payment or performance of such Letters of Credit and any drafts or acceptances thereunder through the issuance of the Letters of Credit Guaranty, thereby lending CIT's credit posted for its benefit upon demand to the applicable issuing bank Borrowing Companies and CIT has agreed to do so. These arrangements shall be handled by CIT subject to the terms and conditions set forth below.
5.1 Within the Revolving Line of Credit (less the “Requested Draw”Sterling Sale Reserve) and upon receipt of any such Requested DrawAvailability, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt CIT shall assist each of the Requested Draw, Borrowing Companies in obtaining Letter(s) of Credit in an amount not to exceed the outstanding amount so received is of the Letter of Credit Sub-Line. CIT's assistance for amounts in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to Sublimit shall at all times and in all respects be in CIT's sole discretion. It is understood that the issue date term, form and purpose of such Eligible each Letter of Credit and all documentation in connection therewith, and any amendments, modifications or if extensions thereof, must be mutually acceptable to CIT, the Issuing Bank and the Borrowing Companies, provided that Letters of Credit shall not be used for the purchase of domestic Inventory or to secure present or future debt of domestic Inventory suppliers. Any and all outstanding Letters of Credit issued hereunder for any Borrowing Company shall be reserved dollar for dollar from Availability as an Availability Reserve.
5.2 CIT shall have the right, without notice to any of the Companies, to charge the Revolving Loan Account with the amount of any Eligible and all indebtedness, liability or obligation of any kind incurred by CIT under the Letters of Credit Guaranty at the earlier of a) payment by CIT under the Letters of Credit Guaranty; or b) the occurrence of an Event of Default. Any amount charged to the Revolving Loan Account shall be deemed a Revolving Loan hereunder and shall incur interest at the rate provided in Paragraph 8.1 of Section 8 of this Financing Agreement.
5.3 Each of the Companies agrees to indemnify CIT and hold CIT harmless from any and all loss, claim or liability incurred by CIT arising from any transactions or occurrences relating to Letters of Credit established or opened for any Borrowing Company's account, the collateral relating thereto and any drafts or acceptances thereunder, and all Obligations thereunder, including any such loss or claim due to any errors, omissions, negligence, misconduct or action taken by any Issuing Bank, other than for any such loss, claim or liability arising out of the gross negligence or willful misconduct by CIT under the Letters of Credit Guaranty. This indemnity shall survive termination of this Financing Agreement. The Companies agree that any charges incurred by CIT for any of the Companies account by the Issuing Bank shall be conclusive on CIT and may be charged to the Companies' Revolving Loan Account.
5.4 CIT shall not be responsible for: (a) the existence, character, quality, quantity, condition, packing, value or delivery of the goods purporting to be represented by any documents; (b) any difference or variation in the character, quality, quantity, condition, packing, value or delivery of the goods from that expressed in the documents; (c) 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; (d) the time, place, manner or order in which shipment is made; (e) 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; (f) any deviation from instructions; (g) delay, default, or fraud by the shipper and/or anyone else in connection with the goods or the shipping thereof; or (h) any breach of contract between the shipper or vendors and the Companies.
5.5 The Companies agree that any action taken by CIT, if taken in good faith, or any action taken by any Issuing Bank, under or in connection with the Letters of Credit, the Letter of Credit needs Guarantees, the drafts or acceptances, or the Collateral, shall be binding on each of the Companies and shall not result in any liability whatsoever of CIT to the Companies. In furtherance thereof, CIT shall have the full right and authority to: (a) clear and resolve any questions of non-compliance of documents; (b) give any instructions as to acceptance or rejection of any documents or goods; (c) execute any and all steamship or airways guaranties (and applications therefore), indemnities or delivery orders; (d) grant any extensions of the maturity of, time of payment for, or time of presentation of, any drafts, acceptances, or documents; and (e) agree to any amendments, renewals, extensions, modifications, changes or cancellations of any of the terms or conditions of any of the applications, Letters of Credit, drafts or acceptances; all in CIT's sole name. The Issuing Bank shall be entitled to comply with and honor any and all such documents or instruments executed by or received solely from CIT, all without any notice to or any consent from the Companies or any one of them. Notwithstanding any prior course of conduct or dealing with respect to the foregoing including amendments and non-compliance with documents and/or any Company's instructions with respect thereto, CIT may exercise its rights hereunder in its sole and reasonable business judgement. In addition, without CIT's express consent and endorsement in writing, the Companies agree: (a) not to execute any and all applications for steamship or airway guaranties, indemnities or delivery orders; to grant any extensions of the maturity of, time of payment for, or time of presentation of, any drafts, acceptances or documents; or to agree to any amendments, renewals, extensions, modifications, changes or cancellations of any of the terms or conditions of any of the applications, Letters of Credit, drafts or acceptances; and (b) after the occurrence of an Event of Default which is not cured within any applicable grace period, if any, or waived by CIT, not to (i) clear and resolve any questions of non-compliance of documents, or (ii) give any instructions as to acceptances or rejection of any documents or goods.
5.6 The Companies agree that: (a) any necessary import, export or other licenses or certificates for the import or handling of the Collateral will have been promptly procured; (b) 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; and (c) any certificates in that regard that CIT may at any time request will be promptly furnished. In connection herewith, the Companies warrant and represent that all shipments made under any such Letters of Credit are in accordance with the laws and regulations of the countries in which the shipments originate and terminate, and are not prohibited by any such laws and regulations. Each of the Companies 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 adjusted in amount as a result of an assignment among Lenders that alters made, or wherein drafts may be drawn, negotiated, accepted, or paid, shall be solely the Pro Rata Basis among LendersCompanies' risk, liability and responsibility.
5.7 Upon any payments made to the Loan Parties and Issuing Bank under the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit Guaranty, CIT shall acquire by subrogation, any rights, remedies, duties or obligations granted or undertaken by the Companies or any one of them to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Issuing Bank in any application for Letters of Credit) as soon as practicable after such assignment , any standing agreement relating to Letters of Credit or otherwise, all of which shall be deemed to have been granted to CIT and until such placements are made, the assigning Lender apply in all respects to CIT and shall act as Applicable Lender for such Agented Lender with respect be in addition to any non-replaced rights, remedies, duties or revised letter of creditobligations contained herein.
Appears in 1 contract
Samples: Debtor in Possession Financing Agreement (Uniroyal Technology Corp)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders under the applicable Revolving Credit Facility set forth in this Section 2.03, to honor drawings, payments or disbursements, as applicable, under the Letters of Credit issued under such Revolving Credit Facility; and (B) (i) with respect to a request for a Letter of Credit (which may include bank guarantees issued in connection with transactions outside of the United States) by the US Borrower or the European Borrower in respect of the Multicurrency RCF Commitments (each such letter of credit, a “Multicurrency RCF Letter of Credit”), the Multicurrency RCF Lenders severally agree to participate in Multicurrency RCF Letters of Credit issued for the account of the US Borrower and for the account of the European Borrower, and any drawings, payments or disbursements, as applicable, thereunder and (ii) with respect to a request for a Letter of Credit by the US Borrower in respect of the US Dollar RCF Commitments (each such letter of credit, a “US Dollar RCF Letter of Credit” and, together with the Multicurrency RCF Letters of Credit, the “Letters of Credit”), the US Dollar RCF Lenders severally agree to participate in US Dollar RCF Letters of Credit issued for the account of the US Borrower, and any drawings, payments or disbursements, as applicable, thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (i) the Total Multicurrency RCF Outstandings shall not exceed the Multicurrency Revolving Credit Facility, (ii) the Total US Dollar RCF Outstandings shall not exceed the US Dollar Revolving Credit Facility, (iii) the aggregate Outstanding Amount of the Multicurrency RCF Loans of any Multicurrency RCF Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Multicurrency RCF L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Multicurrency RCF Swing Line Loans shall not exceed such Lender’s Multicurrency RCF Commitment, (iv) the aggregate Outstanding Amount of the US Dollar RCF Loans of any US Dollar RCF Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all US Dollar RCF L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all US Dollar RCF Swing Line Loans shall not exceed such Lender’s US Dollar RCF Commitment and (v) the Outstanding Amount of the sum of (x) the Multicurrency RCF L/C Obligations and (y) the US Dollar RCF L/C Obligations, shall not exceed the Letter of Credit Sublimit. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by such Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may on or after the Acquisition Funding Date, during the Availability Period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon or payments or disbursements made in respect of, as applicable, and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) the expiry date of such requested Letter of Credit would occur more than thirty (30) months after the date of issuance or last extension, unless (x) with respect to Multicurrency RCF Letters of Credit, the Required Multicurrency Revolving Lenders have approved such expiry date and (y) with respect to US Dollar RCF Letters of Credit, the Required US Dollar Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date; or
(C) such requested Letter of Credit is for the benefit of (x) in the case of a commercial Letter of Credit, sellers of goods to Parent or any of its Subsidiaries, or (y) in the case of any other Letters of Credit, any Applicable Lender holder (or any trustee, agent or other similar representative for any such holders) of L/C Supportable Obligations.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that is an Accelerating Lender may draw on a letter the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or such Letter of Credit in particular or shall impose upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Issuer with respect to such Applicable Lender). If Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon receipt the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the Requested DrawL/C Issuer applicable to letters of credit generally (and, if any requested Letter of Credit would violate such policies and the L/C Issuer refuses to issue such Letter of Credit on the basis thereof, the amount so received L/C Issuer shall promptly notify the applicable Borrower of the details thereof);
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in excess an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit or Bank Guarantee;
(D) (x) in the case of Multicurrency RCF Letters of Credit, such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency and (y) in the case of US Dollar RCF Letters of Credit, such Letter of Credit is to be denominated in a currency other than Dollars; or
(E) (x) with respect to Multicurrency RCF Letters of Credit, any Multicurrency RCF Lender is at that time a Defaulting Lender hereunder and (y) with respect to US Dollar RCF Letters of Credit, any US Dollar RCF Lender is at that time a Defaulting Lender hereunder, unless, in any such case, the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrowers or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv) and (v)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Applicable Lender’s Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Credit Lenders of the relevant Revolving Credit Facility with respect to any Letters of Credit issued by it under such Revolving Credit Facility and its Agented Lender’sthe documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it under such Revolving Credit Facility and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lenderthe L/C Issuer.
(vii) have not been indefeasibly paid It is understood and agreed that in full). In respect of any bank guarantee (x) the event that any Applicable Lender is not a named beneficiary to any Eligible Letter form of Credit because it has become a Lender subsequent bank guarantees shall be subject to the issue date respective L/C Issuer’s internal policies and procedures for the issuance of bank guarantees and to applicable local law restrictions and regulations and (y) the L/C Issuer issuing a bank guarantee may require the Borrower requesting such Eligible Letter of Credit or if bank guarantee to accept such L/C Issuer’s general business conditions specifically applicable to its bank guarantee business prior to the amount issuance of any Eligible Letter bank guarantee.
(viii) Schedule 2.03(a) contains a description of letters of credit that were originally issued pursuant to the Existing Parent Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters Agreement and which remain outstanding on the Pro Rata Basis among LendersClosing Date (and setting forth, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised each such letter of credit, (i) the name of the issuing lender, (ii) the letter of credit number, (iii) the name(s) of the account party or account parties, (iv) the stated amount, (v) the currency in which the letter of credit is denominated, (vi) the name of the beneficiary, (vii) the expiry date and (viii) whether such letter of credit constitutes a standby letter of credit or a trade letter of credit). Each such letter of credit which remains outstanding on the Closing Date, including any extension or renewal thereof in accordance with the terms thereof and hereof (each, as amended from time to time in accordance with the terms thereof and hereof, a “BOA Existing Letter of Credit”) shall constitute (x) in the case of those letters of credit listed in Part A of Schedule 2.03(a) a “Multicurrency RCF Letter of Credit” or (y) in the case of those letters of credit listed in Part B of Schedule 2.03(a) a “US Dollar RCF Letter of Credit”, in each case, for all purposes of this Agreement and shall be deemed issued on the Closing Date for the account of the US Borrower.
Appears in 1 contract
Samples: Credit Agreement (Colfax CORP)
Letters of Credit. Upon notice (a) THE LETTER OF CREDIT FACILITY. Parent may request Issuing Bank, on the terms and conditions hereinafter set forth, to Administrative Agentissue, any Applicable Lender that is an Accelerating Lender may draw on a letter and Issuing Bank shall, if so requested, issue, letters of credit posted for its benefit upon demand to the applicable issuing bank (the “Requested Draw”"LETTERS OF CREDIT") for the account of Parent from time to time on any Business Day from the Effective Date until the Maturity Date in an aggregate maximum amount (assuming compliance with all conditions to drawing) not to exceed at any time outstanding the lesser of (the "LETTER OF CREDIT FACILITY") (i) $5,000,000 and upon receipt (ii) the Domestic Commitment MINUS the sum of any such Requested Draw, apply any such amounts to such Applicable Lender’s (A) the aggregate principal amount of Domestic Advances then outstanding and (and the Advances of B) all Agented Lenders Reimbursement Obligations with respect to such Applicable Lender)Domestic Letters of Credit. If upon receipt The Letter of Credit Facility is a subfacility of the Requested Draw, the Domestic Commitment and is not an amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts addition to the Administrative Agent to be applied as provided in Section 7.03(aDomestic Commitment. No Letter of Credit shall have an expiration (including all rights of renewal) (except thatlater than the earlier of eighteen months from the date of issuance of the Letter of Credit and the Maturity Date. Immediately upon the issuance of each Letter of Credit, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will Issuing Bank shall be deemed to refer have sold and transferred to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable each Domestic Lender, for so long as and each Domestic Lender shall be deemed to have purchased and received from Issuing Bank, in each case irrevocably and without any further action by any party, an undivided interest and participation in such Letter of Credit, each drawing thereunder and the Obligations obligations of Parent under this Agreement in respect thereof in an amount equal to the product of such Lenders (other than Lender's Specified Percentage of the Domestic Commitment times the maximum amount available to be drawn under such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent (assuming compliance with all conditions to drawing). Within the issue date limits of such Eligible the Letter of Credit or if Facility, and subject to the amount limits referred to above, Parent may request the issuance of any Eligible Letter Letters of Credit needs under this SECTION 2.15(a), repay any Advances resulting from drawings thereunder pursuant to be adjusted in amount as a result SECTION 2.15(c), and request the issuance of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter additional Letters of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditunder this SECTION 2.15(a).
Appears in 1 contract
Samples: Credit Agreement (Cameron Ashley Building Products Inc)
Letters of Credit. Upon notice (a) On the Closing Date, each of the Continuing Letters of Credit shall be deemed to have been issued and to be outstanding under this Agreement, and each issuer of a Continuing Letter of Credit hereby consents to the termination, concurrently with the Closing Date, of the participation therein of the lenders under the Existing Xxxxxx'x Credit Agreements.
(b) Subject to the terms and conditions hereof, at any time and from time to time from the Closing Date through the day prior to the Maturity Date, any one or more of the Borrowers may request that any one or more of the Lenders issue, as Issuing Lender, additional Letters of Credit under the Commitment (each of which shall be denominated in Dollars) by submission of a Request for Letter of Credit to such Lender (with a copy to the Administrative Agent); provided that giving effect to all such Letters of Credit, (i) the Outstanding Obligations shall not exceed the Commitment at any time, (ii) without the consent of all of the Lenders, the aggregate principal amount of the Outstanding Obligations of Marina PLUS the outstanding principal amount of the loans outstanding to Marina under the Short Term Commitment shall not exceed Marina's Aggregate Sublimit at any time, (iii) without the consent of all of the Lenders, the aggregate principal amount of the Outstanding Obligations of each Borrower hereafter designated as such pursuant to Section 2.10 PLUS the outstanding principal amount of the loans outstanding to such Borrower under the Short Term Commitment shall not exceed that Borrower's Aggregate Sublimit at any time, and (iv) the Aggregate Effective Amount under all outstanding Letters of Credit shall not exceed $200,000,000. Each Letter of Credit shall be in a form reasonably acceptable to the relevant Issuing Lender. Unless all the Lenders otherwise consent in a writing delivered to the Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw on no Letter of Credit shall have a letter term which extends beyond the Maturity Date.
(c) Each Request for Letter of credit posted for its benefit upon demand Credit shall be submitted to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Drawrelevant Issuing Lender, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts a copy to the Administrative Agent Agent, at least five Business Days prior to the date upon which the related Letter of Credit is proposed to be applied issued (or such shorter period as provided in Section 7.03(a) (except thatmay be acceptable to both the relevant Issuing Lender and the Administrative Agent). The Administrative Agent shall promptly notify the relevant Issuing Lender whether such Request for Letter of Credit, solely for purposes and the issuance of applying such excessa Letter of Credit pursuant thereto, conforms to the requirements of this Agreement. Upon issuance, amendment to or extension of a Letter of Credit, the references to “relevant Issuing Lender shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify the Lenders” in clauses Second, Third of the amount and Fourth of such Section 7.03(aterms thereof.
(d) will On the Closing Date, each Lender shall be deemed to refer have purchased a pro rata participation in each Continuing Letter of Credit from the relevant Issuing Lender in an amount equal to all Lenders that Lender's Pro Rata share. Upon the issuance of each other than Letter of Credit, each Lender shall be deemed to have purchased a pro rata participation in such Applicable Letter of Credit from the relevant Issuing Lender in an amount equal to that Lender's Pro Rata Share. Without limiting the scope and nature of each Lender's participation in any Agented Letter of Credit, to the extent that the relevant Issuing Lender has not been reimbursed by the Borrower which is the account party for any Letter of Credit for any payment required to be made by the relevant Issuing Lender thereunder, each Lender shall, pro rata according to its Pro Rata Share, reimburse the relevant Issuing Lender promptly upon demand for the amount of such payment. The obligation of each Lender to so reimburse the relevant Issuing Lender shall be absolute and unconditional and shall not be affected by the occurrence of an Event of Default or any other occurrence or event. Any such reimbursement shall not relieve or otherwise impair the obligation of Borrowers to reimburse the relevant Issuing Lender for the amount of any payment made by the relevant Issuing Lender under any Letter of Credit together with interest as hereinafter provided.
(e) Promptly and in any event within one Business Day following any drawing upon a Letter of Credit, the amendment or extension thereof, the Issuing Bank for that Letter of Credit shall provide notice thereof to the Administrative Agent. Each Borrower agrees to pay to the relevant Issuing Lender an amount equal to any payment made by the relevant Issuing Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible each Letter of Credit because it has become a within one Business Day after demand made by the relevant Issuing Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder therefor (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.which demand
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Revolving Credit Lender’s Applicable Lender Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or final arbitration award shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or the Letter of Credit in particular or shall impose upon demand the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable issuing bank on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the “Requested Draw”issuance of the Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (except as otherwise agreed by the Administrative Agent and the Advances L/C Issuer, the Letter of Credit is in an initial stated amount less than $500,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars;
(E) any Revolving Credit Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements with the Borrower or such Revolving Credit Lender satisfactory to the L/C Issuer in its sole discretion, including the delivery of Cash Collateral, to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all Agented other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(F) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the Issuing Bank agrees, in reliance upon the agreements of the Lenders set forth in this Section 3.01, (1) from time to time on any Applicable Lender Business Day during the period from the Closing Date until the Termination Date, to issue Letters of Credit for the account of the Company, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Company and any drawings thereunder; provided, that is an Accelerating Lender may draw on after giving effect to the issuance of any Letter of Credit, (x) the Effective Amount of all L/C Obligations plus the Effective Amount of all Revolving Loans plus the Effective Amount of all Swing Line Loans shall not exceed the lesser of (I) the combined Commitments and (II) the Borrowing Base, (y) the aggregate Effective Amount of the Revolving Loans of any Lender, plus such Lender's Pro Rata Share of the Effective Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the Effective Amount of all Swing Line Loans shall not exceed such Lender's Commitment, and (z) the Effective Amount of the L/C Obligations shall not exceed the L/C Commitment. Each request by the Company for the issuance or amendment of a letter Letter of Credit shall be deemed to be a representation by the Company that such issuance or amendment so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The Issuing Bank shall not issue any Letter of Credit if:
(A) subject to Section 3.01(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Majority Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Termination Date, unless the Company has agreed to Cash Collateralize such Letter of Credit in accordance with Section 3.01(g). In no event will the expiry date of any Letter of Credit occur more than twelve months after the Termination Date.
(iii) The Issuing Bank shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing such Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Issuing Bank in good faith deems material to it;
(B) txx xxxxxxxx of such Letter of Credit would violate one or more policies of the applicable issuing bank Issuing Bank;
(C) such Letter of Credit is issued to support workman's compensation liabilities and the “Requested Draw”stated amount is more than $5,000,000;
(D) and upon receipt such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) a default of any Lender's obligations to fund under Section 3.01(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the Issuing Bank has entered into satisfactory arrangements with the Company or such amounts Lender to eliminate the Issuing Bank's risk with respect to such Applicable Lender’s Advances .
(and iv) The Issuing Bank shall not amend any Letter of Credit if the Advances Issuing Bank would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or proposed to be applied issued by it and L/C-Related Documents pertaining to such Letters of Credit as provided fully as if the term "Administrative Agent" as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article X included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender Issuing Bank with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditIssuing Bank.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Restatement Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or Euros for the account of the Borrower or its Subsidiaries that are Guarantors, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries that are Guarantors and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Applicable Lender Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Restatement Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Restatement Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Restatement Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars or Euros;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the applicable issuing bank L/C Issuer (in its sole discretion) with the “Requested Draw”Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.18(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and upon receipt all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) The L/C Issuer shall act on behalf of the Advances of all Agented Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Gsi Group Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally; provided that another Lender reasonably acceptable to the applicable issuing bank Administrative Agent may, in its sole discretion, agree to issue such Letter of Credit subject to the other terms and conditions of this Section 2.03;
(C) except as otherwise agreed by the “Requested Draw”Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $50,000;
(D) and upon receipt such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such amounts Lender to eliminate the L/C Issuer’s risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Samples: Credit Agreement (Coinstar Inc)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.03, (1) from time to time on any Applicable Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or one or more Alternative Currencies for the account of the Borrower, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Total Outstandings would exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans would exceed such Lender's Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that is an Accelerating Lender may draw on a letter have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or such Letter of Credit in particular or shall impose upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Issuer with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.03(b)(iii), the issue expiry date of such Eligible requested Letter of Credit would occur more than twelve months after the date of issuance or if last renewal, unless the amount Required Lenders have approved such expiry date;
(C) the expiry date of any Eligible such requested Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters would occur after the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow Expiration Date, unless all the Lenders have approved such Applicable Lender expiry date;
(D) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer; or
(E) such Letter of Credit is in an initial Dollar Equivalent amount less than $100,000, or is to be denominated in a named currency other than Dollars or an Alternative Currency.
(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary thereunder (or to revise the amounts of such Eligible Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.; Auto-
Appears in 1 contract
Samples: Credit Agreement (Tech Data Corp)
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the US L/C Issuer agrees, in reliance upon the agreements of the US Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue US Letters of Credit for the account of the US Borrower or any of its Restricted Subsidiaries, and to amend US Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the US Letters of Credit; and (B) the US Lenders severally agree to participate in US Letters of Credit issued for the account of the US Borrower or its Restricted Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any US Letter of Credit, (x) the US Total Outstandings shall not exceed the US Aggregate Commitment, (y) the aggregate Outstanding Amount of the US Committed Loans of any Lender, plus such Lender’s US Applicable Percentage of the Outstanding Amount of all US L/C Obligations, plus such Lender’s US Applicable Percentage of the Outstanding Amount of all US Swing Line Loans shall not exceed such Lender’s US Commitment, and (z) the Outstanding Amount of the US L/C Obligations shall not exceed the US Letter of Credit Sublimit. Each request by the US Borrower for the issuance or amendment of a US Letter of Credit shall be deemed to be a representation by the US Borrowers that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the US Borrower’s ability to obtain US Letters of Credit shall be fully revolving, and accordingly the US Borrower may, during the foregoing period, obtain US Letters of Credit to replace US Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof; provided that Existing Letters of Credit will not be subject to new administrative issuance fees, as referred to in the last sentence of Section 2.03(j), on the deemed issuance hereunder.
(ii) Subject to the terms and conditions set forth herein, (A) the Canadian L/C Issuer agrees, in reliance upon the agreements of the Canadian Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Canadian Letters of Credit for the benefit of the Canadian Borrower or any Restricted Subsidiaries that are organized under the laws of Canada or a province thereof, and to amend Canadian Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Canadian Letters of Credit; and (B) the Canadian Lenders severally agree to participate in Canadian Letters of Credit issued for the benefit of the Canadian Borrower or any such Restricted Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Canadian Letter of Credit, (x) the Canadian Total Outstandings do not exceed the Canadian Allocated Aggregate Commitments determined as of the date on which the requested L/C Credit Extensions are to be made, and (y) after giving effect to such L/C Credit Extension the Outstanding Amount of the Canadian Committed Advances by each Canadian Lender plus such Canadian Lender’s Canadian Applicable Percentage of the Outstanding Amount of Canadian L/C Obligations plus such Canadian Lender’s Canadian Applicable Percentage of the Outstanding Amount of all Canadian Swing Line Loans shall not exceed such Canadian Lender’s Canadian Commitment, and (z) the Outstanding Amount of the Canadian L/C Obligations shall not exceed the Canadian Letter of Credit Sublimit. Each request by the Canadian Borrower for the issuance or amendment of a Canadian Letter of Credit shall be deemed to be a representation by the Canadian Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Canadian Borrower’s ability to obtain Canadian Letters of Credit shall be fully revolving, and accordingly the Canadian Borrower may, during the foregoing period, obtain Canadian Letters of Credit to replace Canadian Letters of Credit that have expired or that have been drawn upon and reimbursed.
(iii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iv) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative AgentAgent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000 (or, if denominated in Canadian Dollars, C$500,000);
(D) such Letter of Credit is to be denominated in a currency other than Dollars, in the case of US Letters of Credit or is to be denominated in a currency other than Dollars or Canadian Dollars, in the case of Canadian Letters of Credit,
(E) such Letter of Credit contains any Applicable provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender that is an Accelerating at such time a Defaulting Lender may draw on hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such Lender to eliminate the L/C Issuer’s risk with respect to such Lender; or
(G) such Letter of Credit is a commercial letter of credit posted for credit.
(v) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its benefit upon demand amended form under the terms hereof.
(vi) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the applicable issuing bank L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the “Requested Draw”) and upon receipt beneficiary of any such Requested Draw, apply any such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vii) The US L/C Issuer shall act on behalf of the Advances of all Agented US Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, the Canadian L/C Issuer shall act on behalf of the Requested Draw, Canadian Lenders with respect to any Letters of Credit issued by it and the amount so received is in excess documents associated therewith and each L/C Issuer shall have all of such Applicable Lender’s the benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender Article IX included each L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the lesser of (1) the Aggregate Commitments and (2) the Borrowing Base, (y) the aggregate Outstanding Amount of the Loans of any Lender plus such Lender’s Applicable Lender Percentage of the Outstanding Amount of all L/C Obligations shall not exceed the lesser of (1) such Lender’s Commitment and (2) such Lender’s Pro Rata share of the Borrowing Base, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable issuing bank to letters of credit generally;
(C) except as otherwise agreed by the “Requested Draw”Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(D) and upon receipt such Letter of Credit is to be denominated in a currency other than Dollars; or
(E) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such amounts Lender to eliminate the L/C Issuer’s risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice satisfaction of the conditions set forth in Paragraph 1(b) above and in payment of the amounts due from Lessee to Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw Lessor on a letter account of credit posted for its benefit upon demand to the applicable issuing bank (exercise of the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders Premises Reduction Option with respect to such Applicable Lender). If upon receipt the Excluded Premises, Lessor shall be entitled to draw down the Letters of Credit by an amount equal to (i) the quotient, expressed as a percentage, of (x) the area of the Requested DrawExcluded Premises, expressed in number of acres, divided by (y) forty (40) acres, multiplied by (ii) $25,000,000, and any amount so drawn shall be deemed forfeited by Lessee and treated as Lessee's cost to exercise the Premises Reduction Option. Thereafter, the terms "LC Face Amount" and "Augmented LC Face Amount", as used in the Lease, shall mean the amount so received is in excess available under the Letters of Credit after the draw down by Lessor pursuant to this Paragraph 3. From and after such Applicable Lender’s (and its Agented Lender’sdraw upon the Letters of Credit, Section 9.1(c) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to of the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will Lease shall be deemed to refer to all Lenders other than such Applicable Lender be deleted from the Lease. Lessor and any Agented Lender with respect to such Applicable LenderLessee hereby agree that Lessee shall, for so long as at its sole cost and expense, cause the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter Letters of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount amended to permit a draw thereunder pursuant to this Paragraph. Lessee acknowledges and agrees that the value of the rights and benefits that will accrue hereunder to Lessee as a result of an assignment among Lenders that alters Lessee's valid exercise of the Pro Rata Basis among LendersPremises Reduction Option (including, without limitation, the Loan Parties reduction of Annual Base Rent and Impositions pursuant to Paragraph 1(c)(i) above and the assigning Lender shall use commercially reasonable efforts reduction of Lessee's development obligations pursuant to replace or revise such Eligible Letter Paragraphs 7(a) and 7(b) below) is fair and at least reasonably equivalent to the costs that will be incurred by Lessee as a result of Lessor's draw upon the Letters of Credit pursuant to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditthis Paragraph 3.
Appears in 1 contract
Samples: Ground Lease (Equinix Inc)
Letters of Credit. Upon notice to Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw on a letter (a) The Letter of credit posted for its benefit upon demand Credit Commitment.
(i) Subject to the applicable issuing bank terms and conditions set forth herein, the Lender agrees (A) from time to time on any Business Day during the “Requested Draw”period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the account of the Borrower or any of its Subsidiaries, and to amend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (B) and upon receipt to honor drawings under the Letters of Credit; provided that after giving effect to any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Credit Extension with respect to such Applicable Lender). If upon receipt any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Revolving Commitment and (y) the Outstanding Amount of the Requested Draw, L/C Obligations shall not exceed the amount so received is in excess Letter of such Applicable Lender’s (and its Agented Lender’s) Advances (Credit Sublimit. Each request by the Borrower for the issuance or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes amendment of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth a Letter of such Section 7.03(a) will Credit shall be deemed to refer be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to all Lenders other the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The Lender shall not be under any obligation to issue any Letter of Credit if:
(A) the expiry date of the requested Letter of Credit would occur more than twelve (12) months after the date of issuance, unless the Lender has approved such Applicable expiry date;
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless the Lender and has approved such expiry date;
(C) any Agented order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Lender from issuing the Letter of Credit, or any Law applicable to the Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Lender shall prohibit, or request that the Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Lender with respect to such Applicable the Letter of Credit any restriction, reserve or capital requirement (for which the Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Lender any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Lender in good xxxxx xxxxx material to it;
(D) the issuance of the Letter of Credit would violate one or more policies of the Lender applicable to letters of credit generally;
(E) except as otherwise agreed by the Lender, the Letter of Credit is in an initial stated amount less than $40,000;
(F) the Letter of Credit is to be denominated in a currency other than Dollars; or
(G) the Letter of Credit contains any provisions for so long automatic reinstatement of the stated amount after any drawing thereunder;
(iii) The Lender shall be under no obligation to amend any Letter of Credit if (A) the Lender would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the Obligations case may be, upon the request of the Borrower delivered to the Lender in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application may be sent by fax transmission, by United States mail, by overnight courier, by electronic transmission using the system provided by the Lender, by personal delivery or by any other means acceptable to the Lender. Such Letter of Credit Application must be received by the Lender not later than 11:00 a.m. at least two (2) Business Days (or such Lenders (other than such Applicable later date and time as the Lender and any Agented Lender with respect may agree in a particular instance in its sole discretion) prior to such Applicable Lender) have not been indefeasibly paid in full)the proposed issuance date or date of amendment, as the case may be. In the event that any Applicable Lender is not case of a named beneficiary to any Eligible request for an initial issuance of a Letter of Credit, such Letter of Credit because it has become a Lender subsequent Application shall specify in form and detail reasonably satisfactory to the issue Lender: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day), (B) the amount thereof, (C) the expiry date thereof, (D) the name and address of the beneficiary thereof, (E) the documents to be presented by such Eligible beneficiary in case of any drawing thereunder, (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder, (G) the purpose and nature of the requested Letter of Credit, and (H) such other matters as the Lender may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the Lender (1) the Letter of Credit to be amended, (2) the proposed date of amendment thereof (which shall be a Business Day), (3) the nature of the proposed amendment; and (4) such other matters as the Lender may reasonably require. Additionally, the Borrower shall furnish to the Lender such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the Lender may reasonably require.
(ii) Promptly after its delivery of any Letter of Credit or if the amount of any Eligible Letter of Credit needs amendment to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow an advising bank with respect thereto or to the beneficiary thereof, the Lender will also deliver to the Borrower a true and complete copy of such Applicable Letter of Credit or amendment.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the Lender may, in its reasonable discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided, that, any such Auto-Extension Letter of Credit must permit the Lender to be a named beneficiary thereunder prevent any such extension at least once in each twelve (or to revise 12) month period (commencing with the amounts date of issuance of such Eligible Letters Letter of Credit) as soon as practicable after by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such assignment and until twelve (12) month period to be agreed upon at the time such placements are madeLetter of Credit is issued. Unless otherwise directed by the Lender, the assigning Borrower shall not be required to make a specific request to the Lender for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lender shall act permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the Lender shall not permit any such extension if (A) the Lender has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as Applicable extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and directing the Lender for not to permit such Agented extension. The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the Lender. The Borrower shall be conclusively deemed to have waived any such claim against the Lender with respect to any non-replaced or revised letter of creditand its correspondents unless such notice is given as aforesaid.
Appears in 1 contract
Samples: Credit Agreement
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Revolver Lenders forth in this Section 2.14, (1) from time to time on any Applicable Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Revolver Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and its Subsidiaries; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Revolver Lender shall be obligated to participate in any Letter of Credit, if as of the date of such L/C Credit Extension, (x) the Outstanding Amount of all L/C Obligations and all Revolver Loans would exceed the Aggregate Revolver Commitments, (y) the aggregate Outstanding Amount of the Revolver Loans of any Revolver Lender, plus such Revolver Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations would exceed such Lender’s Revolver Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that is an Accelerating Lender may draw on a letter have expired or that have been drawn upon and reimbursed. The Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or such Letter of Credit in particular or shall impose upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Issuer with respect to such Applicable LenderLetter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good fxxxx xxxxx material to it;
(B) subject to Section 2.14(b)(iii). If upon receipt , the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Required Revolver Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolver Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one or more policies of the Requested Draw, the amount so received L/C Issuer generally applicable to all borrowers; or
(E) such Letter of Credit is in excess a face amount less than $100,000, or is to be used for a purpose other than as described in Section 6.12 or is denominated in a currency other than Dollars.
(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Applicable Lender’s Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and its Agented Lender’sAmendment of Letters of Credit; Evergreen Letters of Credit.
(i) Advances Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (or other Obligations then due and owing such Lenders), pay any such excess amounts with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m., New York time, at least two Business Days (or such later date and time as the L/C Issuer may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be applied presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as provided the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in Section 7.03(aform and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (except that, solely for purposes B) the proposed date of applying amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such excessother matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application, the references to “Lenders” L/C Issuer will confirm with the Administrative Agent (by telephone or in clauses Second, Third and Fourth writing) that the Administrative Agent has received a copy of such Section 7.03(aLetter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolver Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a participation in such Letter of Credit in an amount equal to the product of such Revolver Lender’s Revolver Loan Pro Rata Share times the amount of such Letter of Credit.
(iii) will If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in it sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an “Evergreen Letter of Credit”); provided that any such Evergreen Letter of Credit must permit the L/C Issuer to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Nonrenewal Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such renewal. Once an Evergreen Letter of Credit has been issued, the Revolver Lenders shall be deemed to refer have authorized (but may not require) the L/C Issuer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as permit the Obligations renewal of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because at any time to a date not later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such renewal if it has become a received notice on or before the Business Day immediately preceding the Nonrenewal Notice Date (1) from the Administrative Agent that the Required Revolver Lenders have elected not to permit such renewal or (2) from any Revolver Lender subsequent stating that one or more of the applicable conditions specified in Section 4.02 is not then satisfied and directing the L/C Issuer not to permit such renewal. Notwithstanding anything to the issue date contrary contained herein, the L/C Issuer shall have no obligation to permit the renewal of such Eligible any Evergreen Letter of Credit at any time.
(iv) Promptly after its delivery of any Letter of Credit or if the amount of any Eligible Letter of Credit needs amendment to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (an advising bank with respect thereto or to revise the amounts beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Eligible Letters Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced Credit or revised letter of creditamendment.
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower and to amend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the sum of the Multicurrency Revolving Extensions of Credit shall not exceed the Multicurrency Sublimit, (x) the Total Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Applicable Lender Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) the initial stated expiry date (exclusive of any customary interruption of business exception) of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Lenders have approved such expiry date; or
(B) the initial stated expiry date (exclusive of any customary interruption of business exception) of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon demand the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable issuing bank to letters of credit generally;
(C) except as otherwise agreed by the “Requested Draw”Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $50,000;
(D) and upon receipt such Letter of Credit is to be denominated in a Foreign Currency which the L/C Issuer is not able to issue;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such Requested Drawtime a Defaulting Lender hereunder, apply any unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such amounts Lender to eliminate the L/C Issuer’s risk with respect to such Applicable Lender’s Advances .
(and iv) The L/C Issuer shall not amend any Letter of Credit if the Advances L/C Issuer would not be permitted at such time to issue such Letter of all Agented Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of creditL/C Issuer.
Appears in 1 contract
Letters of Credit. Upon notice to Administrative Agent, any Applicable Lender that is an Accelerating Lender may draw on a letter of credit posted for its benefit upon demand to the applicable issuing bank (the “Requested Draw”a) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible The Letter of Credit because it has become a Lender subsequent Commitment.
(i) Subject to the issue date terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of such Eligible the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit or if the amount of any Eligible Letter Expiration Date, to issue Letters of Credit needs for the account of the Borrower or its Subsidiaries, and to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace amend or revise such Eligible Letter extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to allow such Applicable Lender to be a named beneficiary thereunder (or to revise honor drawings properly drawn under the amounts of such Eligible Letters of Credit; and (B) as soon as practicable the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender giving effect to any L/C Credit Extension with respect to any non-replaced Letter of Credit, (y) the Total Outstandings shall not exceed the Aggregate Commitments and (z) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment. Each request by the Borrower for the issuance or revised letter amendment of credita Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof. The Borrower agrees to promptly notify the Administrative Agent of the designation of any Lender or Affiliate of a Lender as an L/C Issuer.
(ii) No L/C Issuer shall issue any Letter of Credit, if:
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment.
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Restatement Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Applicable Lender Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that is an Accelerating Lender may draw on a letter the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Restatement Effective Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for its benefit which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Restatement Effective Date, or shall impose upon demand the L/C Issuer any 509265-1512-15059-Active.17708695.1 38 unreimbursed loss, cost or expense which was not applicable on the Restatement Effective Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $50,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder;
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the applicable issuing bank L/C Issuer (in its sole discretion) with the “Requested Draw”Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.14(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and upon receipt all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
(G) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such Requested Drawtime to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, apply any or (B) the beneficiary of such amounts Letter of Credit does not accept the proposed amendment to such Applicable Lender’s Advances Letter of Credit.
(and vi) The L/C Issuer shall act on behalf of the Advances of all Agented Revolving Credit Lenders with respect to such Applicable Lender). If upon receipt any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the Requested Draw, the amount so received is in excess of such Applicable Lender’s benefits and immunities (and its Agented Lender’sA) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be applied issued by it and Issuer Documents pertaining to such Letters of Credit as provided fully as if the term “Administrative Agent” as used in Section 7.03(a) (except that, solely for purposes of applying such excess, Article IX included the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender L/C Issuer with respect to such Applicable Lenderacts or omissions, for so long and (B) as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender additionally provided herein with respect to such Applicable Lenderthe L/C Issuer.
(b) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter Procedures for Issuance and Amendment of Credit because it has become a Lender subsequent to the issue date of such Eligible Letter of Credit or if the amount of any Eligible Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow such Applicable Lender to be a named beneficiary thereunder (or to revise the amounts of such Eligible Letters of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.; Auto-
Appears in 1 contract
Letters of Credit. Upon notice (a) The Letter of Credit Commitment. -------------------------------
(i) Subject to Administrative Agentthe terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.03, (1) from time to time ------------ on any Applicable Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that the L/C -------- Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Total Outstandings would exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Pro Rata Share of ---- the Outstanding Amount of all L/C Obligations, plus such Lender's ---- Pro Rata Share of the Outstanding Amount of all Swing Line Loans would exceed such Lender's Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that is an Accelerating Lender may draw on a letter have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit posted for its benefit generally or such Letter of Credit in particular or shall impose upon demand to the applicable issuing bank (the “Requested Draw”) and upon receipt of any such Requested Draw, apply any such amounts to such Applicable Lender’s Advances (and the Advances of all Agented Lenders L/C Issuer with respect to such Applicable Lender). If upon receipt of the Requested Draw, the amount so received is in excess of such Applicable Lender’s (and its Agented Lender’s) Advances (or other Obligations then due and owing such Lenders), pay any such excess amounts to the Administrative Agent to be applied as provided in Section 7.03(a) (except that, solely for purposes of applying such excess, the references to “Lenders” in clauses Second, Third and Fourth of such Section 7.03(a) will be deemed to refer to all Lenders other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender, for so long as the Obligations of such Lenders (other than such Applicable Lender and any Agented Lender with respect to such Applicable Lender) have not been indefeasibly paid in full). In the event that any Applicable Lender is not a named beneficiary to any Eligible Letter of Credit because it has become a Lender subsequent any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.03(b)(iii), the issue expiry date of such Eligible requested Letter of Credit would occur more than twelve months after the date of issuance or if last renewal, unless the amount Required Lenders have approved such expiry date;
(C) the expiry date of any Eligible such requested Letter of Credit needs to be adjusted in amount as a result of an assignment among Lenders that alters would occur after the Pro Rata Basis among Lenders, the Loan Parties and the assigning Lender shall use commercially reasonable efforts to replace or revise such Eligible Letter of Credit to allow Expiration Date, unless all the Lenders have approved such Applicable Lender to be a named beneficiary thereunder expiry date; or
(or to revise D) the amounts issuance of such Eligible Letters Letter of Credit would violate one or more policies of the L/C Issuer.
(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit) as soon as practicable after such assignment and until such placements are made, the assigning Lender shall act as Applicable Lender for such Agented Lender with respect to any non-replaced or revised letter of credit.
Appears in 1 contract
