Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue): (i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect; (ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000; (iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension; (iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code); (v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or (vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 3 contracts
Samples: Amendment and Restatement and Additional Term Loan Assumption Agreement (Skilled Healthcare Group, Inc.), Amendment and Restatement Agreement (Skilled Healthcare Group, Inc.), Amendment and Restatement Agreement (Skilled Healthcare Group, Inc.)
Letters of Credit. Company may requestDuring the Commitment Period, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject subject to the terms and conditions hereof, the Issuing Bank agrees to issue Letters of this Agreement and Credit for the account of the Borrower in reliance upon the representations and warranties aggregate amount up to but not exceeding the Letter of Company herein set forth, any one or more Revolving Lenders may, but Credit Sublimit; provided (except as provided i) each Letter of Credit shall be denominated in subsection 3.1B(ii)Dollars; (ii) the stated amount of each Letter of Credit shall not be obligated to, issue less than $5,000,000 or such Letters of Credit in accordance with lesser amount as is acceptable to the provisions of this subsection 3.1Issuing Bank; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(iiii) any Letter of Credit if, after giving effect to such issuance, in no event shall the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
; (iiiv) any Letter of Credit if, after giving effect to such issuance, in no event shall the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; (v) in no event shall any standby Letter of Credit have an expiration date later than the earlier of (a1) five Business Days prior to the Revolving Loan Commitment Termination Maturity Date and (b2) the date which is one year from the date of issuance of such Standby standby Letter of Credit; provided that and (vi) in no event shall any commercial Letter of Credit (x) have an expiration date later than the immediately preceding clause earlier of (b1) shall not prevent any five Business Days before the Maturity Date and (2) the date which is 180 days from the date of issuance of such commercial Letter of Credit or (y) be issued if such commercial Letter of Credit is otherwise unacceptable to the Issuing Lender from agreeing Bank in its reasonable discretion. Subject to the foregoing, the Issuing Bank may agree that a Standby standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each each, unless such the Issuing Lender Bank elects not to extend for any such additional period; and provided, further that provided the Issuing Bank shall not extend any such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge received written notice 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 the Issuing Lender Bank must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for ; provided further in the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of event a Funding Default exists, the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior Issuing Bank shall not be required to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) issue any Letter of Credit denominated unless the Issuing Bank has entered into arrangements satisfactory to it and the Borrower to eliminate the Issuing Bank’s risk with respect to the participation in a currency other than DollarsLetters of Credit of the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage.
Appears in 3 contracts
Samples: Credit Agreement (Hospira Inc), Credit Agreement (Hospira Inc), Credit Agreement (Hospira Inc)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company the Borrowers set forth herein set forthand in the other Credit Documents, any one or more in addition to requesting that the Banks make Revolving Lenders mayLoans pursuant to Section 1.03, but (except as provided in subsection 3.1B(ii)) shall not be obligated tothe U.S. Borrowers may request, issue such Letters of Credit in accordance with the provisions of this subsection 3.1Section 1.13, that one or more Issuing Banks issue Letters of Credit for the account of the Borrowers; provided that Company (i) no Borrower shall request that any Bank issue any Letter of Credit and a Bank shall not issue any Letter of Credit, if after giving effect to such issuance the sum of (A) the Dollar Equivalent amount of Letter of Credit Usage on the date of such issuance, after giving effect to the issuance of all Letters of Credit subject to outstanding requests for issuance, plus (B) the Dollar Equivalent amount of Revolving Loans and Swingline Loans then outstanding, after giving effect to the making of all Revolving Loans and Swingline Loans then requested by all outstanding but unfunded Notices of Borrowing, would exceed the Total Revolving Loan Commitment then in effect, (ii) no Borrower shall request that any Bank issue any Letter of Credit and a Bank shall not issue any Letter of Credit if after giving effect to such issuance, the sum of the amounts described in clause (i) above would exceed the Borrowing Base as would be shown in the Borrowing Base Certificate that was last delivered pursuant to Section 6.01; provided such Borrowing Base Certificate was required to be delivered pursuant to and was in compliance with Section 6.01 or was delivered after the Borrowing Base Certificate last required to be delivered pursuant to Section 6.01, (iii) in no event shall any Issuing Bank issue (A) any Letter of Credit having an expiration date later than thirty (30) Business Days prior to the Revolving Maturity Date, as applicable, after giving effect to any possible renewal of such Letter of Credit pursuant to the proviso to the following clause (iii)(B), (B) subject to the foregoing clause (iii)(A), any Letter of Credit having an expiration date more than one year after its date of issuance; provided that, subject to the foregoing clause (iii)(A), this clause (B) shall not prevent any Issuing Bank from issuing a Letter of Credit containing a provision to the effect that such Letter of Credit will automatically be renewed annually for a period not to exceed one year, so long as such renewable Letter of Credit provides that it shall not at any time be renewed for an additional year if (I) the Applicable Borrower notifies the Issuing Bank in writing at least one Business Day prior to the applicable renewal date that the Applicable Borrower elects to allow the Letter of Credit to expire without being renewed, or (II) the Issuing Bank or the Required Banks notify the Applicable Borrower in writing, prior to the date set forth in such Letter of Credit as the date by which the beneficiary thereof is to be notified whether such Letter of Credit is to be renewed, that such Letter of Credit shall not be so renewed, in which case such Letter of Credit shall not be so renewed, or (C) any Letter of Credit the initial stated amount of which is less than $10,000 or the Dollar Equivalent thereof and (iv) the U.S. Borrowers shall not request that any Revolving Lender Issuing Bank issue (and no Revolving Lender Issuing Bank shall issue):
(i) issue any Letter of Credit if, after giving effect to such issuanceissuance and the issuance of all other requested Letters of Credit, the Total Utilization then outstanding Letter of Revolving Loan Commitments Credit Usage in respect of the Dollar Equivalent of all Letters of Credit would exceed the Revolving Loan Commitment Amount then in effect;
(ii) $20,000,000. The issuance of any Letter of Credit ifin accordance with the provisions of this Section 1.13 shall be given effect in the calculation of the aggregate principal amount of Revolving Loans outstanding and the Dollar Equivalent of Letter of Credit Usage (except as provided in the definition of Letter of Credit Usage) and shall require the satisfaction of each condition set forth in Section 4.04. Immediately upon the issuance of each Letter of Credit, after giving effect each Bank with a Revolving Loan Commitment other than the Issuing Bank or Banks shall be deemed to, and hereby agrees to, have irrevocably purchased from the Issuing Bank a participation (such participation of each Bank in each Letter of Credit being hereinafter referred to as its "Letter of Credit Participation") in the Dollar Equivalent of such Letter of Credit and each drawing thereunder in an amount equal to such issuanceBank's pro rata share (determined on the basis of such Bank's Revolving Loan Commitment) of the maximum amount which is or at any time may become available to be drawn thereunder. Each Letter of Credit may provide that the Issuing Bank may (but shall not be required to) pay the beneficiary thereof upon the occurrence of an Event of Default and the acceleration of the maturity of the Revolving Loans or, if payment is not then due to the beneficiary, provide for the deposit of funds in an account to secure payment to the beneficiary and that any funds so deposited shall be paid to the beneficiary of the Letter of Credit Usage would exceed $50,000,000;
if conditions to such payment are satisfied or returned to the Issuing Bank for distribution to the Banks (iiior, if all Obligations shall have been paid in full, to the Applicable Borrower) any Standby if no payment to the beneficiary has been made and the final date available for drawings under the Letter of Credit having has passed. Each payment or deposit of funds by an expiration date later than Issuing Bank as provided in this paragraph shall be treated for all purposes of this Agreement as a drawing duly honored by such Issuing Bank under the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby related 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 3 contracts
Samples: Credit Agreement (Morris Material Handling Inc), Credit Agreement (MMH Holdings Inc), Credit Agreement (MMH Holdings Inc)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day 30th day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) Issuing Lender shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Issuing Lender issue (and no Revolving Lender shall issue)::
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0005,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days 30 days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars. 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.
Appears in 2 contracts
Samples: Credit Agreement (Ruths Chris Steak House, Inc.), Credit Agreement (Ruths Chris Steak House, Inc.)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to During the Revolving Loan Commitment Termination DatePeriod, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject subject to the terms and conditions hereof, each Issuing Bank agrees to issue Letters of this Agreement and Credit for the account of any Borrower or any of its Subsidiaries in reliance upon the representations and warranties aggregate amount up to but not exceeding the Letter of Company herein set forthCredit Sublimit; provided, any one or more Revolving Lenders may, but (except as provided i) each Letter of Credit shall be denominated in subsection 3.1B(ii)Dollars; (ii) the stated amount of each Letter of Credit shall not be obligated to, issue less than $50,000 or such Letters of Credit in accordance with lesser amount as is acceptable to the provisions of this subsection 3.1applicable Issuing Bank; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(iiii) any Letter of Credit if, after giving effect to such issuance, in no event shall (x) the Total Utilization of Revolving Loan Commitments would Outstandings exceed the Aggregate Revolving Loan Commitments, (y) the Revolving Credit Exposure of any Lender exceed such Lender’s Revolving Commitment and (z) the Outstanding Amount then in effect;
(ii) any of Letter of Credit if, after giving effect to such issuance, Obligations exceed the Letter of Credit Usage would exceed $50,000,000;
Sublimit; and (iiiiv) in no event shall any Standby standby Letter of Credit having have an expiration date later than the earlier of (a1) five Business Days seven (7) days prior to the Revolving Loan Commitment Termination Date Date, and (b2) the date which is one (1) year from the date of issuance of such Standby standby Letter of Credit; provided that . Subject to the immediately preceding foregoing (other than clause (biv)) shall not prevent any Issuing Lender from agreeing Bank may agree that a Standby standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one (1) year each each, unless such Issuing Lender Bank elects not to extend for any such additional period; and provided, further that no Issuing Bank shall extend any such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge received written notice 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 Bank must elect whether or not to allow such extension;
; provided, further, in the event that any Lender is at such time a Defaulting Lender, unless the applicable Issuing Bank has entered into arrangements satisfactory to such Issuing Bank (ivin its sole discretion) with the Borrowers or such Defaulting Lender to eliminate such Issuing Bank’s Fronting Exposure with respect to such Lender (after giving effect to Section 2.16(a)(iv) and any Standby Cash Collateral provided by the Defaulting Lender), including by Cash Collateralizing such Defaulting Lender’s Revolving Commitment Percentage of the Outstanding Amount of the Letter of Credit issued for the purpose of supporting (a) trade payables Obligations in a manner reasonably satisfactory to Agents, such Issuing Bank shall not be obligated to issue or (b) extend any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial hereunder. The Issuing Bank may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (b“SWIFT”) that is otherwise unacceptable to the applicable Issuing Lender in its message or overnight courier, or any other commercially reasonable discretion; or
(vi) any Letter means of Credit denominated in communicating with a currency other than Dollarsbeneficiary.
Appears in 2 contracts
Samples: Credit Agreement (FutureFuel Corp.), Credit Agreement (FutureFuel Corp.)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. (a) Subject to the terms and conditions hereof, the Issuing Bank, on behalf of this Agreement the Lenders having a Revolving Loan Commitment and the Lenders having an SSI Revolving Loan Commitment, and in reliance upon on the representations and warranties agreements of Company herein such Lenders set forthforth in Section 2.13(d) hereof, any hereby agrees to issue one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit (1) in accordance with respect of Lenders having Revolving Loan Commitments up to an aggregate face amount equal to the provisions Available Letter of this subsection 3.1Credit Commitment and (2) in respect of Lenders having SSI Revolving Loan Commitments up to an aggregate face amount equal to the Available SSI Letter of Credit Commitment, in each case determined immediately prior to giving effect to the issuance thereof; provided provided, however, that Company the Issuing Bank shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit (i) unless the conditions precedent to the issuance thereof set forth in Section 3.3 hereof have been satisfied, (ii) if any Default then exists or would be caused thereby, (iii) if, after giving effect to such issuance, the Total Utilization of Available Revolving Loan Commitments Commitment (or, if applicable, the SSI Letter of Credit Commitment) would be less than zero or (iv) within thirty (30) days preceding the Maturity Date. Each Letter of Credit shall (A) be payable at sight, (B) be denominated in United States dollars, (C) expire, (i) with respect to Standby Letters of Credit, no later than the earlier to occur of (x) the fifth Business Day preceding the Maturity Date and (y) 360 days after its date of issuance (but may contain provisions for automatic renewal; provided that no Default or Event of Default exists on the renewal date or would be caused by such renewal), and (ii) with respect to Commercial Letters of Credit, no later than the earlier to occur of (x) the thirtieth day preceding the Maturity Date and (y) 180 days after its date of Issuance (but may contain provisions for automatic renewal; provided that no Default or Event of Default exists on the renewal date or would be caused by such renewal). Each Letter of Credit shall be subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500 and, to the extent not inconsistent therewith, the laws of the State of New York. The Issuing Bank shall not at any time be obligated to issue, or cause to be issued, any Letter of Credit if such issuance would conflict with, or cause the Issuing Bank to exceed any limits imposed by, any Applicable Law. If a Letter of Credit provides that it is automatically renewable unless notice is given by the Issuing Bank that it will not be renewed, the Issuing Bank shall not be bound to give a notice of non-renewal unless directed to do so by Lenders having in the aggregate more than fifty percent (50%) of the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit ifor, after giving effect to such issuanceif applicable, the Letter of Credit Usage would exceed $50,000,000;
SSI Revolving Loan Commitment) at least sixty-five (iii65) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the then scheduled expiration date of issuance of such Standby Letter of Credit; provided . It is hereby agreed that the immediately preceding clause (b) shall not prevent any Issuing Lender from agreeing that a Standby Letter Letters of Credit will automatically be extended for one or more successive periods not set forth on Schedule 2 attached to exceed one year each unless such Issuing Lender elects not the Assumption Agreement [to extend for any such additional period; and provided, further that such Issuing Lender shall elect not to extend such Standby Letter contain a list of all outstanding Letters of Credit if it has knowledge that an Event of Default has occurred and is continuing (and has not been waived in accordance with subsection 10.6) at on the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter Combination Date] are Letters of Credit issued hereunder for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as all purposes hereunder notwithstanding anything herein that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior may be construed to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollarscontrary.
Appears in 2 contracts
Samples: Loan Agreement (American Tower Corp /Ma/), Loan Agreement (American Tower Corp /Ma/)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. (a) Subject to the terms and conditions of this Agreement and hereof, each Issuing Lender, in reliance upon on the representations and warranties agreements of Company herein the other Lenders set forthforth in Section 2.3(g), any one or more Revolving Lenders may, but agrees to issue letters of credit (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such “Letters of Credit Credit”) for the account of the Borrower on any Business Day during the period from and including the Closing Date to the date that is five Business Days prior to the Revolving Termination Date in accordance with the provisions of this subsection 3.1such form as may be approved from time to time by such Issuing Lender; provided that Company shall not request that any Revolving Lender issue (and no Revolving Issuing Lender shall issue):
(i) have any obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the Total Utilization of Revolving Loan Commitments L/C Obligations would exceed the Revolving Loan L/C Commitment Amount then (or the L/C Obligations in effect;
respect of Letters of Credit issued by such Issuing Lender exceed its maximum L/C Commitment as set forth in the definition thereof), (ii) any Letter the Total Revolving Extensions of Credit ifwould exceed the Total Revolving Commitments or (iii) any Lender is a Defaulting Lender, unless such Issuing Lender has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate such Issuing Lender’s actual or potential Fronting Exposure (after giving effect to Section 2.20(a)(iii)) with respect to such issuance, Defaulting Lender arising from either the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby then proposed to be issued or that Letter of Credit having an expiration date and all other L/C Obligations as to which such Issuing Lender has actual or potential Fronting Exposure. Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no later than the earlier of (ax) five Business Days prior to the Revolving Loan Commitment Termination Date first anniversary of its date of issuance and (by) 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and Date; provided that any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods as set forth in Section 2.3(d) (2) which shall in no event extend beyond the date referred to in clause (y) above); provided further that at any time the Revolving Commitments have been extended pursuant to Section 2.1(b), the L/C Obligations shall not exceed the Total Revolving Commitments scheduled to be in effect through the end of any extended Revolving Commitment Period.
(b) No Issuing Lender shall at any time be obligated to issue any Letter of Credit 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.
(c) The Borrower may from time to time request that an Issuing Lender issue a Letter of Credit by delivering to such Issuing Lender at its address for notices specified herein an Application therefor, completed to the satisfaction of such Issuing Lender, and such other certificates, documents and other papers and information as such Issuing Lender may request. Upon receipt of any Application, such Issuing Lender will process such Application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit requested thereby (but in no event shall such Issuing Lender be required to issue any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by such Issuing Lender and the Borrower. Such Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower promptly following the issuance thereof. Such Issuing Lender shall promptly furnish to the Administrative Agent, which is 180 days from shall in turn promptly furnish to the Lenders, notice of the issuance of each Letter of Credit (including the amount thereof).
(d) If the Borrower so requests in any applicable Application, an Issuing Lender 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 Issuing Lender to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Commercial 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 applicable Issuing Lender, the Borrower shall not be required to make a specific request to such Issuing Lender 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 Issuing Lender to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five Business Days prior to the Revolving Termination Date; provided, however, that an Issuing Lender shall not permit any such extension if such Issuing Lender (A) 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 or (bB) 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 from the Administrative Agent, any Lender or the Borrower, in each case, that one or more of the applicable conditions specified in Section 4.2 is not then satisfied, and in each such case directing the Issuing Lender not to permit such extension.
(e) The Borrower will pay a fee on all outstanding Letters of Credit (a “Letter of Credit Fee”) at a per annum rate equal to the Applicable Margin then in effect with respect to LIBOR Rate Loans, shared among the Lenders in accordance with their respective Revolving Percentages and payable quarterly in arrears on each Fee Payment Date after the issuance date; provided, however, any Letter of Credit Fees otherwise unacceptable payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which neither the Borrower nor such Defaulting Lender has provided Cash Collateral satisfactory to the applicable Issuing Lender (in its reasonable sole discretion) shall be payable, to the maximum extent permitted by applicable law, to the other Lenders in accordance with the upward adjustments in their respective Revolving Percentages allocable to such Letter of Credit pursuant Section 2.20(a)(iii), with the balance of such fee, if any, payable to the applicable Issuing Lender for its own account; provided further that if the Borrower provides Cash Collateral in respect of the Fronting Exposure of such Defaulting Lender, such fee shall not be payable by the Borrower or, if paid, shall be returned to the Borrower. In addition, the Borrower shall pay to each applicable Issuing Lender for its own account a fronting fee for each Letter of Credit requested by the Borrower in such amount and at such times as may be set forth in a separate letter agreement between the Borrower and such Issuing Lender.
(vif) In addition to the foregoing fees, the Borrower shall pay or reimburse each Issuing Lender for such normal and customary costs and expenses as are incurred or charged by such Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit.
(g) Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce such Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from such Issuing Lender, on the terms and conditions set forth below, for such L/C Participant’s own account and risk, an undivided interest equal to such L/C Participant’s Revolving Percentage in such Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued by such Issuing Lender and the amount of each draft paid by such Issuing Lender thereunder. Each L/C Participant agrees with each Issuing Lender that, if a draft is paid under any Letter of Credit denominated for which such Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of this Agreement, such L/C Participant shall pay to such Issuing Lender upon demand at such Issuing Lender’s address for notices specified herein an amount equal to such L/C Participant’s Revolving Percentage of the amount of such draft, or any part thereof, that is not so reimbursed (the “Unreimbursed Amount”), and such amount equal to such L/C Participant’s Revolving Percentage of the amount of such draft shall be deemed to be a currency Base Rate Loan for all purposes hereunder. With respect to any Unreimbursed Amount that is not fully refinanced by a borrowing of Base Rate Loans because the conditions set forth in Section 4.2 cannot be satisfied or for any other reason, each Lender shall pay to the Administrative Agent for the account of such Issuing Lender its Revolving Percentage of such Unreimbursed Amount which shall be deemed payment in respect of its participation obligation under this Section 2.3(g). Each L/C Participant’s obligations to make the Revolving Loans referred to in this Section 2.3(g) and to purchase participating interests pursuant to this Section 2.3(g) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such L/C Participant may have against such Issuing Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Section 4, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other L/C Participant or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(h) If any amount required to be paid by any L/C Participant to any Issuing Lender pursuant to Section 2.3(g) in respect of any unreimbursed portion of any payment made by such Issuing Lender under any Letter of Credit is paid to such Issuing Lender within three Business Days after the date such payment is due, such L/C Participant shall pay to such Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any L/C Participant pursuant to Section 2.3(g) is not made available to the applicable Issuing Lender by such L/C Participant within three Business Days after the date such payment is due, such Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon calculated from such due date at the rate per annum applicable to Base Rate Loans. A certificate of an Issuing Lender submitted to any L/C Participant with respect to any amounts owing under this Section shall be conclusive in the absence of manifest error.
(i) Whenever, at any time after any Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its Revolving Percentage of such payment in accordance with Section 2.3(g), such Issuing Lender receives any payment related to such Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral applied thereto by such Issuing Lender), or any payment of interest on account thereof, such Issuing Lender will distribute to such L/C Participant its Revolving Percentage thereof; provided, however, that in the event that any such payment received by such Issuing Lender shall be required to be returned by such Issuing Lender, such L/C Participant shall return to such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it.
(j) If any draft is paid under any Letter of Credit, the Borrower shall reimburse the applicable Issuing Lender for the amount of (a) the draft so paid and (b) any taxes, fees, charges or other costs or expenses incurred by such Issuing Lender in connection with such payment, not later than Dollars12:00 Noon, New York City time, on the Business Day immediately following the day that the Borrower receives notice of such draft, either directly or through the incurrence of a Revolving Loan pursuant to Section 2.3(g). Each such payment shall be made to such Issuing Lender at its address for notices referred to herein in Dollars and in immediately available funds. Interest shall be payable on any such amounts from the date on which the relevant draft is paid until payment in full at the rate set forth in Section 2.9(b).
(k) The Borrower’s obligations under this Section 2.3 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower may have or have had against any Issuing Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees with each Issuing Lender that such Issuing Lender shall not be responsible for, and the Borrower’s Reimbursement Obligations under Section 2.3(j) shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee. No Issuing Lender shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Issuing Lender. The Borrower agrees that any action taken or omitted by an Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct, shall be binding on the Borrower and shall not result in any liability of such Issuing Lender to the Borrower.
(l) If any draft shall be presented for payment under any Letter of Credit, the applicable Issuing Lender shall promptly notify the Borrower of the date and amount thereof. The responsibility of each Issuing Lender to the Borrower in connection with any draft presented for payment under any Letter of Credit shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit.
(m) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Section 2.3, the provisions of this Section 2.3 shall apply.
(n) Unless otherwise expressly agreed by the applicable Issuing Lender and the Borrower when a Letter of Credit is issued, (i) the rules of the International Standby Practices shall apply to each standby Letter of Credit and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance, shall apply to each commercial Letter of Credit.
Appears in 2 contracts
Samples: Credit Agreement (Westar Energy Inc /Ks), Credit Agreement (Westar Energy Inc /Ks)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to During the Revolving Loan Commitment Termination DatePeriod, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject subject to the terms and conditions of this Agreement and in reliance upon hereof, the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, Issuing Bank agrees to issue such Letters of Credit for the account of the Borrower or any of its Subsidiaries in accordance with the provisions aggregate amount up to, but not exceeding, the Letter of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):Credit Sublimit, provided:
(i) any each Letter of Credit if, shall be denominated in Dollars;
(ii) the stated amount of each Letter of Credit shall not be less than Fifty Thousand Dollars ($50,000) or such lesser amount as is acceptable to the Issuing Bank;
(iii) after giving effect to such issuance, in no event shall: (A) the Total Utilization of Revolving Loan Commitments would Outstandings exceed the Aggregate Revolving Loan Commitment Commitments; (B) the Revolving Credit Exposure of any Lender exceed such Lender’s Revolving Commitment; and (C) the Outstanding Amount then in effect;of Letter of Credit Obligations exceed the Letter of Credit Sublimit; and
(iiiv) in no event shall any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having have an expiration date later than the earlier of of: (aA) five Business Days seven (7) days prior to the Revolving Loan Commitment Termination Date Date; and (bB) the date which is one (1) year from the date of issuance of such Standby Letter of Credit; provided that . Subject to the immediately preceding foregoing (other than clause (biv)) shall not prevent any the Issuing Lender from agreeing Bank may agree that a Standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one (1) year each each, unless such the Issuing Lender Bank elects not to extend for any such additional period; and provided, further that the Issuing Bank shall not extend any such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge received written notice 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 the Issuing Lender Bank must elect whether or not to allow such extension;
; provided, further, in the event that any Lender is at such time a Defaulting Lender, unless the Issuing Bank has entered into arrangements satisfactory to the Issuing Bank (ivin its sole discretion) with the Borrower or such Defaulting Lender to eliminate the Issuing Bank’s Fronting Exposure with respect to such Lender (after giving effect to Section 2.16(a)(iv) and any Standby Cash Collateral provided by the Defaulting Lender), including by Cash Collateralizing such Defaulting Lender’s Revolving Commitment Percentage of the Outstanding Amount of the Letter of Credit issued for Obligations in a manner reasonably satisfactory to Agents, the purpose of supporting (a) trade payables Issuing Bank shall not be obligated to issue or (b) extend any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial hereunder. The Issuing Bank may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (b“SWIFT”) that is otherwise unacceptable to the applicable Issuing Lender in its message or overnight courier, or any other commercially reasonable discretion; or
(vi) any Letter means of Credit denominated in communicating with a currency other than Dollarsbeneficiary.
Appears in 2 contracts
Samples: Credit Agreement (Heritage Insurance Holdings, Inc.), Credit Agreement (Heritage Insurance Holdings, Inc.)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to During the Revolving Loan Commitment Termination DatePeriod, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject subject to the terms and conditions hereof, Issuing Bank agrees to issue Letters of this Agreement and Credit for the account of the Borrowers in reliance upon the representations and warranties aggregate amount up to but not exceeding the Letter of Company herein set forthCredit Sublimit; provided, any one (i) each Letter of Credit shall be denominated in Dollars or more Revolving Lenders mayEuro, but as applicable; (except as provided in subsection 3.1B(ii)ii) the stated amount of each Letter of Credit shall not be obligated toless than $250,000 or such lesser amount as is acceptable to Issuing Bank; provided, issue such in no event shall the aggregate minimum amount of Letters of Credit in accordance with issued at any time be less than €50,000 or the provisions of this subsection 3.1Dollar Equivalent thereof; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(iiii) any Letter of Credit if, after giving effect to such issuance, in no event shall the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
; (iiiv) any Letter of Credit if, after giving effect to such issuance, in no event shall the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; (v) in no event shall any standby Letter of Credit have an expiration date later than the earlier of (a1) five Business Days prior to the Revolving Loan Commitment Termination Date and (b2) the date which is one year from the date of issuance of such Standby standby Letter of Credit; provided that the immediately preceding clause and (bvi) in no event shall not prevent any Issuing Lender from agreeing that a Standby commercial 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 knowledge that an Event of Default has occurred and is continuing (and has not been waived in accordance with subsection 10.6x) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having have an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial commercial Letter of Credit or (b) that be issued if such commercial Letter of Credit is otherwise unacceptable to the applicable Issuing Lender Bank in its reasonable discretion. Subject to the foregoing, Issuing Bank may agree that a standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each, unless Issuing Bank elects not to extend for any such additional period; or
(vi) provided, Issuing Bank shall not extend any such Letter of Credit if it has received written notice that an Event of Default has occurred and is continuing and the Requisite Lenders have directed the Issuing Lender to cease providing Letters of Credit at the time Issuing Bank must elect to allow such extension; provided, further, in the event a Funding Default exists, Issuing Bank shall not be required to issue any Letter of Credit denominated unless Issuing Bank has entered into arrangements satisfactory to it and the Borrowers to eliminate Issuing Bank’s risk with respect to the participation in a currency other than DollarsLetters of Credit of the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage.
Appears in 2 contracts
Samples: First Lien Credit and Guaranty Agreement (Solera Holdings, Inc), First Lien Credit and Guaranty Agreement (Solera Holdings LLC)
Letters of Credit. Company may requestDuring the Commitment Period, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject subject to the terms and conditions hereof, the Issuing Bank agrees to issue Letters of this Agreement and Credit for the account of the Borrower in reliance upon the representations and warranties aggregate amount up to but not exceeding the Letter of Company herein set forth, any one or more Revolving Lenders may, but Credit Sublimit; provided that (except as provided i) each Letter of Credit shall be denominated in subsection 3.1B(ii)Dollars; (ii) the stated amount of each Letter of Credit shall not be obligated to, issue less than $100,000 or such Letters of Credit in accordance with lesser amount as is acceptable to the provisions of this subsection 3.1Issuing Bank; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(iiii) any Letter of Credit if, after giving effect to such issuance, in no event shall the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
; (iiiv) any Letter of Credit if, after giving effect to such issuance, in no event shall the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; (v) in no event shall any standby Letter of Credit have an expiration date later than the earlier of (a1) five (5) Business Days prior to the Revolving Loan Commitment Termination Date and (b2) the date which is one year from the date of issuance of such Standby standby Letter of Credit; provided that the immediately preceding clause and (bvi) in no event shall not prevent any Issuing Lender from agreeing that a Standby commercial 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having have an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial commercial Letter of Credit or (b) that be issued if such commercial Letter of Credit is otherwise unacceptable to the applicable Issuing Lender Bank in its reasonable discretion. Subject to the foregoing, the Issuing Bank may agree that a standby Letter of Credit shall automatically be extended for one or more successive periods not to exceed one year each, unless the Issuing Bank elects not to extend for any such additional period; or
(vi) provided that the Issuing Bank shall not extend any such Letter of Credit if it has received written notice that an Event of Default has occurred and is continuing at the time the Issuing Bank must elect to allow such extension; provided further, that in the event there is a Defaulting Lender, the Issuing Bank shall not be required to issue, renew or extend any Letter of Credit denominated to the extent (x) the Defaulting Lender’s Pro Rata Share of Letter of Credit Commitment may not be reallocated pursuant to Section 2.22(a) or (y) the Issuing Bank has not otherwise entered into arrangements satisfactory to it and the Borrower to eliminate the Issuing Bank’s risk with respect to the participation in a currency other than DollarsLetters of Credit of the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage.
Appears in 2 contracts
Samples: Revolving Loan Agreement (CURO Group Holdings Corp.), Revolving Loan Agreement (CURO Group Holdings Corp.)
Letters of Credit. Company Borrower may request, in accordance with the provisions of this subsection Section 3.1, from time to time during the period from the Effective Closing Date up to but excluding the fifth Business Day 30th day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company Borrower (or for the account of any Group Member thereof so long as Borrower and such other Loan Party or Subsidiary thereof are co-applicants in respect of such Letter of Credit) for the general corporate purposes of Company any Loan Party or a any Subsidiary of Companythereof. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders may, but Issuing Lender may elect (except as provided in subsection 3.1B(ii)its sole discretion) shall not be obligated to, to issue such Letters of Credit, in which case such Letter of Credit Shall be issued in accordance with the provisions of this subsection Section 3.1; provided that Company Borrower shall not request that any Revolving Issuing Lender issue (and no Revolving Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0005,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (aA) five Business Days prior to the Revolving Loan Commitment Termination Date and (bB) the date which is one year from the date of issuance of such Standby Letter of CreditCredit (or such longer period as Issuing Lender may agree in its sole discretion); provided that the immediately preceding clause (bB) shall not prevent any such 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, provided further that such Issuing Lender shall may elect not to extend such Standby Letter of Credit if it has knowledge that an Event of Default has occurred and is continuing (and has not been waived in accordance with subsection Section 10.6) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (aA) trade payables or (bB) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars;
(vi) any Letter of Credit if the amount available to be drawn thereunder is less than $50,000; or
(vii) that, in the reasonable judgment of Administrative Agent or the Issuing Lender, is not readily and freely available or would violate any laws or internal policies applicable to Issuing Lender.
Appears in 2 contracts
Samples: Credit Agreement (EngageSmart, LLC), Credit Agreement (EngageSmart, LLC)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth 10th Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0005,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five 10 Business Days prior to the Revolving Loan 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 further, that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code)payables;
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five 10 Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 2 contracts
Samples: First Lien Credit Agreement (SafeNet Holding Corp), First Lien Credit Agreement (SafeNet Holding Corp)
Letters of Credit. Company may request(a) Letters of Credit -- General. Bank One agrees, in accordance with subject to the provisions terms and conditions of this subsection 3.1Agreement, from to issue upon the application of the Company and for the account of the Company commercial and standby letters of credit for the purpose of supporting payment of all or any part of the Acquisition Seller Debt or for any other general business purpose of the Company other than Credit Enhancement (each a "Letter of Credit"), provided that:
(1) The aggregate Letter of Credit Exposure shall not at any time to exceed the lesser of (A) Twenty-Five Million Dollars ($25,000,000) or (B) the Maximum Availability at such time during minus the period from aggregate principal balance of all Revolving Loans and Swing Line Loans outstanding at such time;
(2) No Letter of Credit shall have an expiry date later than the Effective Date to but excluding earlier of (i) the fifth Business Day prior to the Scheduled Revolving Loan Commitment Termination Loans Maturity Date, that and (ii) one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1year after its issuance; provided that any Letter of Credit with an expiry date one year after the date of issuance may provide for renewals thereof for additional one year periods if such renewals do not extend the expiry date beyond the date that is five Business Days prior to the Scheduled Revolving Loans Maturity Date.
(3) The Company shall not request that and Bank One shall have no obligation to issue any Revolving Lender issue (and no Revolving Lender shall issue):
Letter of Credit: (i) at any Letter time any Event of Credit Default or Unmatured Event Default shall have occurred and be continuing; (ii) at any time after the Revolving Loans Maturity Date; (iii) if, after giving effect to such issuance, the Total Utilization aggregate Letter of Revolving Loan Commitments Credit Exposure would exceed the lesser of (A) Twenty-Five Million Dollars ($25,000,000) or (B) the Maximum Availability at such time minus the then aggregate principal balance of all Revolving Loan Commitment Amount Loans and Swing Line Loans outstanding at such time; (iv) if the face amount of such Letter of Credit would exceed the then in effectoutstanding Remaining Availability; or (v) for any purpose other than those permitted hereunder;
(ii4) Bank One in no event shall be obligated to issue any Letter of Credit ifif the issuance of such Letter of Credit on the terms requested would be contrary to, after giving effect or in violation of the policies of Bank One or any requirement of applicable law;
(5) The form of the requested Letter of Credit shall be satisfactory to such issuanceBank One in the reasonable exercise of Bank One's discretion; and
(6) If requested by Bank One, Bank One shall have received from the Company an application and reimbursement agreement for the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior in form and substance satisfactory to the Revolving Loan 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 knowledge that an Event of Default has occurred and is continuing (and has not been waived Bank One in accordance with subsection 10.6) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” all respects (as that term is used in Section 547 the same may be amended, modified, extended, renewed, supplemented, replaced and/or restated from time to time and at any time, "Reimbursement Agreement"), duly executed by an Authorized Officer on behalf of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than DollarsCompany.
Appears in 2 contracts
Samples: Credit Agreement (Valley National Gases Inc), Credit Agreement (Valley National Gases Inc)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. (a) Subject to the terms and conditions of set forth in this Agreement Agreement, at any time and in reliance upon from time to time from the representations and warranties of Company herein set forthClosing Date through the day that is thirty (30) days prior to the Maturity Date, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) the Issuing Lender shall not be obligated to, issue such Letters of Credit as the Borrower may request upon the delivery of a written request in accordance with the provisions form of this subsection 3.1; Exhibit E hereto (a “Letter of Credit Request”) to the Issuing Lender, provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter no Default or Event of Credit ifDefault shall have occurred and be continuing, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any upon issuance of such Letter of Credit if, after giving effect to such issuanceCredit, the Letter of Credit Usage would Liabilities shall not exceed $50,000,000;
the Letter of Credit Commitment, (iii) any Standby in no event shall the sum of the outstanding principal amount of the Revolving Credit Loans, Swing Loans and Letter of Credit having 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 or §9.11, (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; and provided further that prior to the IPO Conditions Satisfaction Date the issuance of any Letter of Credit shall be subject to the approval of the Required Lenders. Notwithstanding anything to the contrary in this Agreement, in the event that the IPO Conditions Satisfaction Date has not occurred on or before December 31, 2015 (or such later date if extended in accordance with this Agreement), the Issuing Lender shall, commencing with the first day after the last day by which the IPO Conditions Satisfaction Date is required to occur, if at all, as provided in the definition of IPO Conditions and continuing thereafter, have no further obligation to issue, extend, amend, increase or renew any Letters of Credit, and the Borrower shall have no further right to request the issuance, extension, amendment, increase or renewal of any Letters of Credit, unless the Super-Majority Lenders have approved such matter in their sole and absolute discretion. 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 from a Lender that such conditions have not been satisfied. Each Letter of Credit Request shall be executed by an expiration 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 Agent 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 later than of issuance thereof, subject to extension pursuant to an “evergreen” clause acceptable to the earlier of Agent and the Issuing Lender (abut in any event the term shall not extend beyond five (5) five 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 Loan Commitment Termination Date and 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 approve) prior to the date upon which the requested Letter of Credit is one year from to be issued. Each such Letter of Credit Request shall contain 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). 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 F attached hereto) 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 Standby Letter of Credit; provided that in the immediately preceding clause event of any conflict, the terms of this Agreement shall control.
(bc) shall not prevent any The Issuing Lender from agreeing that a Standby shall, subject to the conditions set forth in this Agreement, issue the Letter of Credit will automatically be extended for one on or more successive periods not before five (5) Business Days following receipt of the documents last due pursuant 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 §2.10(b). Each Letter of Credit if it has knowledge that an Event of Default has occurred shall be in form and is continuing (and has not been waived in accordance with subsection 10.6) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior substance reasonably satisfactory to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable 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 Letter of Credit. No Lender’s obligation to participate in a Letter of 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%) per annum 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 telecopy, email, 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 and to the extent 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 is 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 draw and at the Federal Funds Effective Rate plus one percent (1%) for each day thereafter. Further, such Lender shall be deemed to have assigned any and all payments made of principal and 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 Lender was required to fund pursuant to this §2.10(f) until such amount has been funded (as a result of such assignment or otherwise). In the event of any 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 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 Letter of Credit pursuant to §2.10(c) by the Issuing Lender, but prior to the 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 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); orprovided, 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 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, telecopy, email 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 denominated 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 currency other than Dollarsresult of the gross negligence or willful misconduct of the Issuing Lender as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods.
Appears in 2 contracts
Samples: Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.)
Letters of Credit. Company Within 15 business days of the date hereof, Buyer shall deliver to Seller one or more irrevocable letters of credit issued by financial institutions reasonably acceptable to Seller (the "Letters of Credit") providing for drawings in an aggregate principal amount equal to $__________ (the "LC Amount"). The Letters of Credit shall be returned to Buyer upon the Closing of the Transactions or upon termination of this Agreement for any reason other than the following: (i) Seller's termination of this Agreement pursuant to Section 6.2.4 or 6.2.5, or (ii) Seller's termination of this Agreement pursuant to Section 6.2.1 because the condition precedent set forth in Section 3.2.1 becomes incapable of satisfaction through no fault of Seller after Buyer has had a reasonable opportunity to cause such condition precedent to be satisfied. In addition, if Seller terminates this Agreement pursuant to Section 6.2.4 as a result of Buyer's breach of Section 4.1.4 for any reason, Buyer and Seller have mutually agreed that in addition to Seller's right to draw down the full amount of the Letters of Credit, Buyer shall be liable to Seller for an additional amount equal to the LC Amount. If Buyer fails to deliver the Letters of Credit within 15 business days of the date hereof, and Seller thereafter terminates this Agreement pursuant to Section 6.2.4 as a result thereof, Buyer shall be liable to Seller for the LC Amount. In the event that Seller terminates this Agreement for any of the foregoing reasons, in view of the difficulty of determining the amount of damages which may requestresult to Seller from such failure to consummate the Transactions, Buyer and Seller have mutually agreed that the proceeds of the Letters of Credit and any other monies payable to Seller in accordance with the foregoing provisions shall be retained by Seller as liquidated damages, and not as a penalty, and this Agreement shall thereafter become null and void except for those provisions which by their terms survive termination of this subsection 3.1, from time to time during Agreement. The parties have agreed that the period from proceeds of the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit and such other monies payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit Seller in accordance with the foregoing provisions of this subsection 3.1; provided that Company in such event shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than DollarsSeller's exclusive remedy.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (U S West Communications Inc), Purchase and Sale Agreement (U S West Inc /De/)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. (a) Subject to the terms and conditions of this Agreement and hereof, each Issuing Lender, in reliance upon on the representations and warranties agreements of Company herein the other Lenders set forthforth in Section 2.3(g), any one or more Revolving Lenders may, but agrees to issue letters of credit (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such “Letters of Credit Credit”) for the account of the Borrower on any Business Day during the period from and including the Closing Date to the date that is five Business Days prior to the Revolving Termination Date in accordance with the provisions of this subsection 3.1such form as may be approved from time to time by such Issuing Lender; provided that Company shall not request that any Revolving Lender issue (and no Revolving Issuing Lender shall issue):
(i) have any obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the Total Utilization of Revolving Loan Commitments L/C Obligations would exceed the Revolving Loan L/C Commitment Amount then (or the L/C Obligations in effect;
respect of Letters of Credit issued by such Issuing Lender exceed its maximum L/C Commitment as set forth in the definition thereof), (ii) any Letter the Total Revolving Extensions of Credit ifwould exceed the Total Revolving Commitments or (iii) any Lender is a Defaulting Lender, unless such Issuing Lender has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate such Issuing Lender’s actual or potential Fronting Exposure (after giving effect to Section 2.20(a)(iii)) with respect to such issuance, Defaulting Lender arising from either the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby then proposed to be issued or that Letter of Credit having an expiration date and all other L/C Obligations as to which such Issuing Lender has actual or potential Fronting Exposure. Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no later than the earlier of (ax) five Business Days prior to the Revolving Loan Commitment Termination Date first anniversary of its date of issuance and (by) 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and Date; provided that any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods as set forth in Section 2.3(d) (2) which shall in no event extend beyond the date referred to in clause (y) above); provided further that at any time the Revolving Commitments have been extended pursuant to Section 2.1(b), the L/C Obligations shall not exceed the Total Revolving Commitments scheduled to be in effect through the end of any extended Revolving Commitment Period. Letters of Credit issued under the Existing Credit Agreement and outstanding on the Closing Date shall continue to constitute Letters of Credit hereunder.
(b) No Issuing Lender shall at any time be obligated to issue any Letter of Credit 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.
(c) The Borrower may from time to time request that an Issuing Lender issue a Letter of Credit by delivering to such Issuing Lender at its address for notices specified herein an Application therefor, completed to the satisfaction of such Issuing Lender, and such other certificates, documents and other papers and information as such Issuing Lender may request. Upon receipt of any Application, such Issuing Lender will process such Application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit requested thereby (but in no event shall such Issuing Lender be required to issue any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by such Issuing Lender and the Borrower. Such Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower promptly following the issuance thereof. Such Issuing Lender shall promptly furnish to the Administrative Agent, which is 180 days from shall in turn promptly furnish to the Lenders, notice of the issuance of each Letter of Credit (including the amount thereof).
(d) If the Borrower so requests in any applicable Application, an Issuing Lender 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 Issuing Lender to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Commercial 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 applicable Issuing Lender, the Borrower shall not be required to make a specific request to such Issuing Lender 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 Issuing Lender to permit the extension of such Letter of Credit at any time to an expiry date not later than the date that is five Business Days prior to the Revolving Termination Date; provided, however, that an Issuing Lender shall not permit any such extension if such Issuing Lender (A) 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 or (bB) 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 from the Administrative Agent, any Lender or the Borrower, in each case, that one or more of the applicable conditions specified in Section 4.2 is not then satisfied, and in each such case directing the Issuing Lender not to permit such extension.
(e) The Borrower will pay a fee on all outstanding Letters of Credit (a “Letter of Credit Fee”) at a per annum rate equal to the Applicable Margin then in effect with respect to LIBOR Rate Loans, shared among the Lenders in accordance with their respective Revolving Percentages and payable quarterly in arrears on each Fee Payment Date after the issuance date; provided, however, any Letter of Credit Fees otherwise unacceptable payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which neither the Borrower nor such Defaulting Lender has provided Cash Collateral satisfactory to the applicable Issuing Lender (in its reasonable sole discretion) shall be payable, to the maximum extent permitted by applicable law, to the other Lenders in accordance with the upward adjustments in their respective Revolving Percentages allocable to such Letter of Credit pursuant Section 2.20(a)(iii), with the balance of such fee, if any, payable to the applicable Issuing Lender for its own account; provided further that if the Borrower provides Cash Collateral in respect of the Fronting Exposure of such Defaulting Lender, such fee shall not be payable by the Borrower or, if paid, shall be returned to the Borrower. In addition, the Borrower shall pay to each applicable Issuing Lender for its own account a fronting fee for each Letter of Credit requested by the Borrower in such amount and at such times as may be set forth in a separate letter agreement between the Borrower and such Issuing Lender.
(vif) In addition to the foregoing fees, the Borrower shall pay or reimburse each Issuing Lender for such normal and customary costs and expenses as are incurred or charged by such Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit.
(g) Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce such Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from such Issuing Lender, on the terms and conditions set forth below, for such L/C Participant’s own account and risk, an undivided interest equal to such L/C Participant’s Revolving Percentage in such Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued by such Issuing Lender and the amount of each draft paid by such Issuing Lender thereunder. Each L/C Participant agrees with each Issuing Lender that, if a draft is paid under any Letter of Credit denominated for which such Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of this Agreement, such L/C Participant shall pay to such Issuing Lender upon demand at such Issuing Lender’s address for notices specified herein an amount equal to such L/C Participant’s Revolving Percentage of the amount of such draft, or any part thereof, that is not so reimbursed (the “Unreimbursed Amount”), and such amount equal to such L/C Participant’s Revolving Percentage of the amount of such draft shall be deemed to be an ABR Loan for all purposes hereunder. With respect to any Unreimbursed Amount that is not fully refinanced by a currency borrowing of ABR Loans because the conditions set forth in Section 4.2 cannot be satisfied or for any other reason, each Lender shall pay to the Administrative Agent for the account of such Issuing Lender its Revolving Percentage of such Unreimbursed Amount which shall be deemed payment in respect of its participation obligation under this Section 2.3(g). Each L/C Participant’s obligations to make the Revolving Loans referred to in this Section 2.3(g) and to purchase participating interests pursuant to this Section 2.3(g) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such L/C Participant may have against such Issuing Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Section 4, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other L/C Participant or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(h) If any amount required to be paid by any L/C Participant to any Issuing Lender pursuant to Section 2.3(g) in respect of any unreimbursed portion of any payment made by such Issuing Lender under any Letter of Credit is paid to such Issuing Lender within three Business Days after the date such payment is due, such L/C Participant shall pay to such Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any L/C Participant pursuant to Section 2.3(g) is not made available to the applicable Issuing Lender by such L/C Participant within three Business Days after the date such payment is due, such Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon calculated from such due date at the rate per annum applicable to ABR Loans. A certificate of an Issuing Lender submitted to any L/C Participant with respect to any amounts owing under this Section shall be conclusive in the absence of manifest error.
(i) Whenever, at any time after any Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its Revolving Percentage of such payment in accordance with Section 2.3(g), such Issuing Lender receives any payment related to such Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral applied thereto by such Issuing Lender), or any payment of interest on account thereof, such Issuing Lender will distribute to such L/C Participant its Revolving Percentage thereof; provided, however, that in the event that any such payment received by such Issuing Lender shall be required to be returned by such Issuing Lender, such L/C Participant shall return to such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it.
(j) If any draft is paid under any Letter of Credit, the Borrower shall reimburse the applicable Issuing Lender for the amount of (a) the draft so paid and (b) any taxes, fees, charges or other costs or expenses incurred by such Issuing Lender in connection with such payment, not later than Dollars12:00 Noon, New York City time, on the Business Day immediately following the day that the Borrower receives notice of such draft, either directly or through the incurrence of a Revolving Loan pursuant to Section 2.3(g). Each such payment shall be made to such Issuing Lender at its address for notices referred to herein in Dollars and in immediately available funds. Interest shall be payable on any such amounts from the date on which the relevant draft is paid until payment in full at the rate set forth in Section 2.9(b).
(k) The Borrower’s obligations under this Section 2.3 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower may have or have had against any Issuing Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees with each Issuing Lender that such Issuing Lender shall not be responsible for, and the Borrower’s Reimbursement Obligations under Section 2.3(j) shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee. No Issuing Lender shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Issuing Lender. The Borrower agrees that any action taken or omitted by an Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct, shall be binding on the Borrower and shall not result in any liability of such Issuing Lender to the Borrower.
(l) If any draft shall be presented for payment under any Letter of Credit, the applicable Issuing Lender shall promptly notify the Borrower of the date and amount thereof. The responsibility of each Issuing Lender to the Borrower in connection with any draft presented for payment under any Letter of Credit shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit.
(m) To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Section 2.3, the provisions of this Section 2.3 shall apply.
(n) Unless otherwise expressly agreed by the applicable Issuing Lender and the Borrower when a Letter of Credit is issued, (i) the rules of the International Standby Practices shall apply to each standby Letter of Credit and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance, shall apply to each commercial Letter of Credit.
Appears in 2 contracts
Samples: Second Extension Agreement (Westar Energy Inc /Ks), Credit Agreement (Westar Energy Inc /Ks)
Letters of Credit. Company In addition to Borrower requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(iii), Borrower may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company Borrower for the general corporate purposes specified in the definition of Company or a Subsidiary Letters of CompanyCredit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii3.1B(iii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided PROVIDED that Company Borrower shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the lesser of the Revolving Loan Commitment Amount Commitments or the Borrowing Base then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00025,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided PROVIDED that the immediately preceding clause (b) shall not prevent any Issuing Lender (but subject to clause (a) above) 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 providedPROVIDED, further FURTHER that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge that an Event of Default or Potential 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used denominated in Section 547 of the Bankruptcy Code)a currency other than Dollars;
(v) any Commercial Letter of Credit having an expiration date (a) later with a face amount of less than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial $10,000, or any Letter of Credit or with a face amount of less than $100,000 if after giving effect to such issuance there shall be more than 15 Letters of Credit outstanding with face amounts of less than $100,000; or
(bvi) any Letter of Credit that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 2 contracts
Samples: Credit Agreement (Integrated Defense Technologies Inc), Credit Agreement (Integrated Defense Technologies Inc)
Letters of Credit. Company In addition to Borrower requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(iii) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iv), Borrower may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Issuing Lenders issue Letters of Credit payable on a sight basis for the account of Company Borrower for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided PROVIDED that Company Borrower shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided 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 providedPROVIDED, further FURTHER that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge been notified by Administrative Agent 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(viii) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1X) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2Y) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or;
(viiv) any Letter of Credit that does not provide for sight payment; or
(v) any Letter of Credit that is denominated in a currency other than Dollars.
Appears in 2 contracts
Samples: Credit Agreement (Boyds Collection LTD), Credit Agreement (Boyds Collection LTD)
Letters of Credit. In addition to Company requesting that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(iii) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iv), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company or any of its Subsidiaries (provided that Company shall be deemed to be the account party hereunder and shall be fully liable under this Section 3 with respect to all Letters of Credit issued for the general corporate account of its Subsidiaries) for the purposes specified in the definitions of Company or a Subsidiary Standby Letters of CompanyCredit and Trade Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders mayIssuing Lender shall, but (except as provided in subject to subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Issuing Lender issue (and no Revolving Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0005,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which that is one year from the date of issuance of such Standby Letter of Credit; provided that the immediately preceding clause (b) shall not prevent Company from requesting and 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 period (such Issuing Lender hereby agreeing that it shall only elect not to extend such Standby Letter of Credit if if, but only if, it has 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Codecontinuing);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(viiv) any Letter of Credit denominated in a currency other than Dollars.
Appears in 2 contracts
Samples: Credit Agreement (Decrane Holdings Co), Credit Agreement (Decrane Aircraft Holdings Inc)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement hereof and in reliance upon on the representations Lenders’ obligations under this Section 2.12, each Issuing Bank agrees to issue, from time to time on and warranties after the Closing Date prior to the Revolving Commitment Termination Date, at the request of Company herein set forththe Borrower, any one or more Revolving Lenders maystandby letters of credit in form and substance reasonably acceptable to such Issuing Bank (each, but a “Letter of Credit”) for the account of the Borrower or any Subsidiary in a face amount in each case of at least $1,000,000 (except or, in either case, such lesser amount as the applicable Issuing Bank may agree to in its sole discretion); provided in subsection 3.1B(ii)) that an Issuing Bank shall not be obligated torequired to issue, issue increase or extend a Letter of Credit pursuant to this Section 2.12 if (i) immediately after giving effect to the issuance, increase or extension thereof, the aggregate L/C Exposures of all Lenders would thereby exceed the L/C Limit, (ii) the issuance, increase or extension of such Letter of Credit would violate any legal or regulatory restriction then applicable to such Issuing Bank or any Revolving Lender or would violate one or more policies of such Issuing Bank generally applicable to all applicants with respect to the type of Letters of Credit requested, in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any each case as notified by such Issuing Bank or such Revolving Lender issue (and no Revolving Lender shall issue):
(i) any to the Administrative Agent before the date of issuance, increase or extension of such Letter of Credit ifor (iii) immediately after giving effect to the issuance, increase or extension thereof, the L/C Exposure of such Issuing Bank would exceed such Issuing Bank’s L/C Sublimit (unless otherwise agreed in writing to by such Issuing Bank in its sole discretion); and provided, further that, if there exists a Defaulting Lender, no Issuing Bank shall be required to issue, increase or extend a Letter of Credit unless the Borrower shall have complied with Section 2.12(g) with respect to any Fronting Exposure that exists at the time of such issuance, increase or extension, as applicable, or would exist immediately after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter increase or extension, as applicable. Letters of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) and any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date increases 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) extensions thereof hereunder 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 knowledge that an Event of Default has occurred and is continuing (and has not been waived issued in accordance with subsection 10.6) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit face amounts denominated in a currency other than Dollars.
Appears in 2 contracts
Samples: Credit Agreement (Seacor Holdings Inc /New/), Credit Agreement (Seacor Holdings Inc /New/)
Letters of Credit. Company may requestEach Letter of Credit must individually satisfy subsections a, b, c and d below and all of the Letters of Credit collectively must satisfy the requirements of subsections e and f. In addition, each Letter of Credit individually and all of the Letters of Credit collectively must satisfy any other applicable legal or regulatory requirements of Connecticut that must be complied with in accordance with order to ensure that the provisions Reinsured is entitled to take the maximum credit for the risks ceded under this Agreement on its statutory financial statements, given that the Reinsurer is neither a licensed nor an accredited reinsurer under the applicable laws and regulations of Connecticut.
a. Each Letter of Credit must: (I) be an original and signed by an authorized official of the issuing bank or an authorized official of the confirming bank (in the case of a confirmation meeting the requirements of this subsection 3.1, from time to time during the period Section); (II) contain an issuance date and contain an expiry date that is no earlier than one calendar year from the Effective Date issuance date; (III) be issued or confirmed by a "Qualified Bank" (as defined in subsection b below that is acceptable to but excluding the fifth Business Day Reinsured); (IV) be issued on behalf of the Reinsurer as the "Applicant" and include such indication in a boxed area that states it is "For Internal Identification Purposes Only" (or similar words to that effect) and that does not affect the terms of the Letter of Credit or the bank's obligations thereunder; (V) be issued to the Reinsurer as "Beneficiary" and expressly indicate in the body of the Letter of Credit that the definition of the "Beneficiary" under the Letter of Credit includes any successor by operation of law of the Reinsurer, including, without limitation, any liquidator, rehabilitator, receiver, or conservator for the Reinsurer; (VI) be issued, presentable and payable at an office of the issuing or confirming bank within the United States; (VII) be "clean and unconditional" (meaning that the Letter of Credit makes no reference to any other agreement, document or entity and provides that the Beneficiary need only draw a sight draft under the Letter of Credit or confirmation and present it to promptly obtain funds and that no other document need be presented); (VIII) contain a statement that it is not subject to any agreement, condition or qualification outside the Letter of Credit itself; (IX) contain a statement to the effect that the obligation of the issuing bank under the Letter of Credit is an individual obligation of such bank and is in no way contingent upon reimbursement with respect thereto; (X) be irrevocable and contain an "evergreen clause" (meaning that the letter of credit or confirmation cannot be revoked prior to its expiry date and that it will automatically renew prior to the Revolving Loan Commitment Termination Dateoccurrence of the expiry date unless written notice sent by U.S. registered mail has been delivered to the Reinsured as Beneficiary at the notice address stipulated in subsection c not less than 30 days prior to the expiry date); (XI) state that it is subject to and governed by the laws of the State of Connecticut and the 1993 Revision of the Uniform Customs and Practice for Documentary Credits of the International Chamber of Commerce (Publication 500) and that, in the event of any conflict, the laws of the State of Connecticut will control; and (XII) contain a provision for an extension of time, of not less than 30 days after resumption of business, to draw against the Letter of Credit in the event that one or more Revolving Lenders issue Letters of Credit payable on the occurrences described in article 17 of Publication 500 occurs.
b. The term "Qualified Bank" as used herein shall mean a sight basis for bank or trust company that: (I) is organized and existing, or in the account case of Company for a branch or agency office of a foreign banking organization is licensed, under the general corporate purposes laws of Company the United States or any state thereof; (II) is regulated, supervised and examined by United States Federal or state authorities having regulatory authority over banks and trust companies; (III) is determined by the Securities Valuation Office of the National Association of Insurance Commissioners to meet such standards of financial condition and standing as are considered necessary and appropriate to regulate the quality of banks and trust companies whose letters of credit will be acceptable to insurance regulatory authorities; (IV) is not a Subsidiary foreign branch office of Company. Subject to a bank or trust company organized and existing in the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1United States; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (bV) 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 parent, subsidiary 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 affiliate of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than Reinsured or the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than DollarsReinsurer.
Appears in 2 contracts
Samples: Automatic Coinsurance Agreement (Prudential Annuities Life Assurance Corp Variable Account B), Automatic Coinsurance Agreement (American Skandia Life Assur Corp Var Acct B Cl 1 Sub Accts)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance ----------------- Agreement, the Revolving Credit Commitments may be utilized, upon the representations and warranties request of Company herein set forththe Borrower, any one or more in addition to the Revolving Lenders mayCredit Loans provided for by Section 2.01(a) hereof, but by the issuance by the Issuing Lender of letters of credit (except as provided in subsection 3.1B(ii)) shall not be obligated tocollectively, issue such "Letters of Credit in accordance with Credit") for account of the provisions Borrower or any of this subsection 3.1; its ----------------- Subsidiaries (as specified by the Borrower), provided that Company in no event shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) -------- the aggregate amount of all Letter of Credit Liabilities, together with the aggregate principal amount of the Revolving Credit Loans, exceed the aggregate amount of the Revolving Credit Commitments as in effect from time to time, (ii) the outstanding aggregate amount of all Letter of Credit Liabilities exceed $35,000,000 and (iii) the expiration date of any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than extend beyond the earlier of (a) the date five Business Days prior to the Revolving Loan Credit Commitment Termination Date and the date twelve months following the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, twelve months after the then-current expiration date of such Letter of Credit, so long as such renewal or extension occurs within three months of such then- current expiration date). The following additional provisions shall apply to Letters of Credit:
(a) The Borrower shall give the Administrative Agent at least three Business Days' irrevocable prior notice (effective upon receipt) specifying the Business Day (which shall be no later than 30 days preceding the Revolving Credit Commitment Termination Date) each Letter of Credit is to be issued and the account party or parties therefor and describing in reasonable detail the proposed terms of such Letter of Credit (including the beneficiary thereof) and the nature of the transactions or obligations proposed to be supported thereby (including whether such Letter of Credit is to be a commercial letter of credit or a standby letter of credit). Upon receipt of any such notice, the Administrative Agent shall advise the Issuing Lender of the contents thereof.
(b) On each day during the date which is one year from period commencing with the date of issuance of such Standby Letter of Credit; provided that by 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated and until such Letter of Credit shall have expired or been terminated, the Revolving Credit Commitment of each Revolving Credit Lender shall be Credit Agreement ---------------- deemed to be utilized for all purposes of this Agreement in a currency an amount equal to such Lender's Revolving Credit Commitment Percentage of the then undrawn face amount of such Letter of Credit. Each Revolving Credit Lender (other than Dollarsthe Issuing Lender) agrees that, upon the issuance of any Letter of Credit hereunder, it shall automatically acquire a participation in the Issuing Lender's liability under such Letter of Credit in an amount equal to such Lender's Revolving Credit Commitment Percentage of such liability, and each Revolving Credit Lender (other than the Issuing Lender) thereby shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and shall be unconditionally obligated to the Issuing Lender to pay and discharge when due, its Revolving Credit Commitment Percentage of the Issuing Lender's liability under such Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of any demand for payment under such Letter of Credit, the Issuing Lender shall promptly notify the Borrower (through the Administrative Agent) of the amount to be paid by the Issuing Lender as a result of such demand and the date on which payment is to be made by the Issuing Lender to such beneficiary in respect of such demand. Notwithstanding the identity of the account party of any Letter of Credit, the Borrower hereby unconditionally agrees to pay and reimburse the Administrative Agent for account of the Issuing Lender for the amount of each demand for payment under such Letter of Credit that is in substantial compliance with the provisions of such Letter of Credit at or prior to the date on which payment is to be made by the Issuing Lender to the beneficiary thereunder, without presentment, demand, protest or other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in paragraph (c) of this Section 2.03, the Borrower shall advise the Administrative Agent whether or not the Borrower intends to borrow hereunder to finance its obligation to reimburse the Issuing Lender for the amount of the related demand for payment and, if it does, submit a notice of such borrowing as provided in Section 4.05 hereof.
(e) Each Revolving Credit Lender (other than the Issuing Lender) shall pay to the Administrative Agent for account of the Issuing Lender at its principal office in Dollars and in immediately available funds, the amount of such Lender's Revolving Credit Commitment Percentage of any payment under a Letter of Credit upon notice by the Issuing Lender (through the Administrative Agent) to such Revolving Credit Lender requesting such payment and specifying such amount. Each such Revolving Credit Lender's obligation to make such payment to the Administrative Agent for account of the Issuing Lender under this paragraph (e), and the Issuing Lender's right to receive the same, shall be absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, the failure of any other Revolving Credit Lender to make its payment under this paragraph (e), the financial condition of the Credit Agreement ----------------
Appears in 2 contracts
Samples: Credit Agreement (Mediacom LLC), Credit Agreement (Mediacom LLC)
Letters of Credit. 3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS THEREIN.
A. LETTERS OF CREDIT. In addition to Company requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(iii) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iv), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided PROVIDED that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00025,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided 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 PROVIDED FURTHER that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days one year from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(viv) any Letter of Credit denominated in a foreign currency other than Dollarswhich in the judgment of the applicable Issuing Lender is not readily and freely available.
Appears in 2 contracts
Samples: Credit Agreement (Petco Animal Supplies Inc), Credit Agreement (Petco Animal Supplies Inc)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to During the Revolving Loan Commitment Termination DatePeriod, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject subject to the terms and conditions hereof, Issuing Bank agrees to issue Letters of this Agreement and Credit for the account of Borrower in reliance upon the representations and warranties aggregate amount up to but not exceeding the Letter of Company herein set forthCredit Sublimit; provided, any (i) each Letter of Credit shall be denominated in Dollars or one or more Revolving Lenders may, but Alternative Currencies; (except as provided in subsection 3.1B(ii)ii) the stated amount of each Letter of Credit shall not be obligated to, issue less than $250,000 or such Letters of Credit in accordance with the provisions of this subsection 3.1lesser amount as is acceptable to Issuing Bank; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(iiii) any Letter of Credit if, after giving effect to such issuance, in no event shall the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
; (iiiv) any Letter of Credit if, after giving effect to such issuance, in no event shall the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; (v) in no event shall any Letter of Credit have an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided that and (vi) in no event shall any Letter of Credit have an expiration date later than the immediately preceding clause (b) shall not prevent any Letter of Credit Expiration Date. Subject to the foregoing, Issuing Lender from agreeing Bank may agree that a Standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each each, unless such Issuing Lender Bank elects not to extend for any such additional period; and provided, further that Issuing Bank shall not extend any such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge received written notice 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 Bank must elect whether or not to allow such extension;
(iv) ; provided further, if any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term Lender is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior a Defaulting Lender, Issuing Bank shall not be required to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) issue any Letter of Credit denominated unless Issuing Bank has entered into arrangements satisfactory to it and Borrower to eliminate Issuing Bank’s risk with respect to the participation in a currency Letters of Credit of the Defaulting Lender. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other than Dollarsagreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (TerraForm Power, Inc.), Credit and Guaranty Agreement
Letters of Credit. In addition to Company requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(iv) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(v), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000100,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 knowledge been notified by Administrative Agent 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1X) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2Y) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(viv) any Letter of Credit denominated in a currency other than Dollarsthat does not provide for sight payment.
Appears in 2 contracts
Samples: Credit Agreement (NXS I LLC), Credit Agreement (Amphenol Corp /De/)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that that:
(i) any Revolving Lender issue or amend (and no Revolving Lender shall issue):
(iissue or amend) any Letter of Credit if, after giving effect to such issuanceissuance or amendment, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Lender issue or amend (and no Lender shall issue or amend) any Letter of Credit if, after giving effect to such issuanceissuance or amendment, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Lender issue (and no Lender shall issue) any Letter of Credit having (or amend any existing Letter of credit so that it would have) an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 (bx) 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 may have an expiration date later than the Revolving Loan Commitment Termination Date only if Company agrees to exceed one year each unless Cash Collateralize 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is least five Business Days prior to the Revolving Loan Commitment Termination Date (or such later date as shall be determined by Administrative Agent in its sole discretion) and (2y) the date which is 180 days from the date of issuance of such Commercial Letter Letters of Credit may be issued with (or (bamended to provide) that is otherwise unacceptable to a tenor of greater than one year only with the applicable Issuing Lender in its reasonable discretionprior written consent of all of the Lenders; or
(viiv) any Lender issue (and no Lender shall issue) any Letter of Credit denominated in a currency other than Dollars. Notwithstanding anything contained in this Agreement, no Issuing Lender shall be under any obligation to issue any Letter of Credit (x) if the Issuing Lender has received written notice that the conditions precedent set forth in subsection 4.3 have not been satisfied, or (y) at a time when any other Lender is a Defaulting Lender, unless the Issuing Lender has entered into arrangements (which may include the delivery of Cash collateral) with Company or such Defaulting Lender which are satisfactory to the Issuing Lender to eliminate the Issuing Lender’s Fronting Exposure (after giving effect to subsection 2.11C) with respect to any such Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Ameriprise Financial Inc), Credit Agreement (Ameriprise Financial Inc)
Letters of Credit. Company (a) Subject to and upon the terms and conditions herein set forth, the Borrower may request, in accordance with request that the provisions Letter of this subsection 3.1, Credit Issuer at any time and from time to time during on or after the period from the Effective Initial Borrowing Date to but excluding the fifth Business Day and prior to the Revolving Loan Commitment Termination DateFinal Maturity Date issue, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes Borrower and in support of Company or a Subsidiary working capital obligations of Company. Subject the Borrower and such other obligations of the Borrower that are acceptable to the Administrative Agent and, subject to and upon the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Issuer agrees to issue from time to time, irrevocable standby letters of credit in such form as may be approved by the Letter of Credit having an expiration date later than Issuer (each such letter of credit, a "Letter of Credit" and, collectively, the earlier "Letters of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and Credit"). All Letters of Credit shall be denominated in U.S. dollars.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued if after giving effect thereto, the Letter of Credit Outstandings would exceed either (x) $10,000,000 or (y) when added to the aggregate outstanding principal amount of all Revolving Loans, the Total Revolving Commitment at such time and (ii) each Letter of Credit shall have an expiry date which is occurring not later than one year from the date of issuance of after such Standby Letter of Credit; 's date of issuance, provided that the immediately preceding clause (b) shall not prevent any Issuing Lender from agreeing that a Standby such Letter of Credit will automatically may be extended extendable for one or more successive periods not of up to exceed one year each unless such Issuing Lender elects not 12 months on terms acceptable to extend for any such additional period; and provided, further that such Issuing Lender shall elect not to extend such Standby the Letter of Credit if it has knowledge that an Event of Default has occurred Issuer and is continuing (and has not been waived in accordance with subsection 10.6) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) no event shall any Letter of Credit denominated have an expiry date occurring later than the fifth Business Day preceding the Final Maturity Date.
(c) Notwithstanding the foregoing, in the event a currency other than DollarsLender Default exists, the Letter of Credit Issuer shall not be required to issue any Letter of Credit unless the Letter of Credit Issuer has entered into arrangements satisfactory to it and the Borrower to eliminate the Letter of Credit Issuer's risk with respect to the participation in Letters of Credit of the Defaulting RF Lender or Lenders, including by cash collateralizing such Defaulting RF Lender's or Lenders' Percentage of the Letter of Credit Outstandings.
Appears in 2 contracts
Samples: Credit Agreement (National Tobacco Co Lp), Credit Agreement (National Tobacco Co Lp)
Letters of Credit. Company (a) Subject to the satisfaction of the conditions precedent set forth in Section 3.2 and Section 3.3, and upon the terms and conditions set forth herein, the LC Commitments may requestbe utilized from time to time after the Term Conversion Date by the Borrower upon the irrevocable [***] Confidential Treatment Requested prior written request for the issuance of letters of credit pursuant to and in accordance with Section 2.4(b) (each a “Letter of Credit”). On each day during the period commencing with the issuance by an Issuing Bank of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the LC Commitments shall be deemed to be utilized for all purposes hereof in an amount equal to the Stated Amount of such Letter of Credit. Letters of Credit may be issued solely for the purpose of satisfying the Debt Service Reserve Requirement as described in Section 2.21(c). Letters of Credit shall permit the amounts drawn thereunder to be reinstated by amendment of such Letter of Credit upon reimbursement of any such drawings.
(b) Upon the irrevocable prior written request for issuance by the Borrower to the Administrative Agent and an Issuing Bank in the form of Exhibit A during the LC Loan Availability Period (“Request for LC”) no less than five (5) Business Days prior to the requested date of issuance, each Issuing Bank shall issue one or more Letter(s) of Credit in the form of Exhibit B on the requested date of issuance for the account of the Borrower (i) for a term of the lesser of one year or five (5) Business Days prior to the LC Loan Maturity Date; provided that the Letter(s) of Credit may, by their terms, automatically extend for additional periods past the stated expiration date therein unless the applicable Issuing Bank provides notice to the beneficiary thereof that such Letter of Credit shall terminate upon the then effective expiration date, in which case the beneficiary shall be permitted upon receipt of such notice, to draw under the applicable Letter of Credit prior to the date such Letter of Credit otherwise would have been automatically renewed, (ii) in the Stated Amount set forth in the request for issuance; provided that for each Request for LC, each Issuing Bank shall issue Letter(s) of Credit with an aggregate Stated Amount equal to such Issuing Bank’s Pro Rata Share of the total Stated Amounts of all Letters of Credit issued pursuant to such Request for LC, and (iii) naming the beneficiary as the Collateral Agent; provided that the aggregate Stated Amounts of any outstanding Letters of Credit shall not exceed the unused LC Commitment as of the date of issuance.
(c) The payment by an Issuing Bank of a drawing under any Letter of Credit (“LC Disbursement”) shall constitute the making by such Issuing Bank of a loan to the Borrower in the amount of such payment. Each LC Disbursement shall be made pro rata among all outstanding Letters of Credit. Upon any drawing under any Letter of Credit, the Borrower shall pay and reimburse such Issuing Bank for the amount of such drawing at or prior to the date on which payment is to be made by such Issuing Bank in accordance with the provisions terms of such Letter of Credit to the beneficiary thereunder. In the event that a drawing under any Letter of Credit is not repaid by the Borrower by 2:00 p.m. (New York City time), on the day of such drawing, upon receiving notice from such Issuing Bank the Administrative Agent shall promptly notify each Lender of the applicable Class of LC Commitments. Each such Lender shall, on the day after such notification, make a loan to the Borrower which shall be used to repay such Issuing Bank’s loan with respect to such drawing, in an amount equal to the amount of such Lender’s Pro Rata Share (calculated with respect to such Class of LC Commitments) in such drawing (each, an “LC Loan”), and shall pay to such Issuing Bank, on the day after such notification and in immediately available funds, the amount of such LC Loan plus one day of interest on such loan at the rate applicable hereunder. Each such Lender’s obligation to make such payments to such Issuing Bank shall be absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limiting the effect of the foregoing, (A) the failure of any other Lender to make its payment under this subsection 3.1clause (c), (B) the financial condition of the Borrower (or any other account party), (C) the existence of any Default or Event of Default, or (D) the termination of the applicable LC Commitments. Each such payment to such Issuing Bank shall be made without any offset, abatement, withholding or reduction whatsoever. In the event that any Lender fails to make any payment due to such Issuing Bank on the due date therefor, such Lender shall pay interest to such Issuing Bank on such amount from and including such due date to but excluding the date such payment is made (A) during the period from and including such due date to but excluding the date three (3) Business Days thereafter, at a rate per annum equal to the Base Rate, and (B) thereafter, at a rate per annum equal to the Default Rate.
(d) Any LC Loans shall be repaid by the Borrower in accordance with Section 4.2 of the Depositary Agreement without premium or penalty. Any remaining amounts outstanding shall be due and payable on the LC Loan Maturity Date.
(e) Except as provided by Sections 2.8(c) and Section 2.16, any LC Loan may, from time to time during time, be Eurodollar Loans or Base Rate Loans as determined by the period from Borrower who shall notify the Effective Date Administrative Agent in the applicable Request for LC in accordance with Section 2.4(b).
(f) The obligation of the Borrower to but excluding the fifth Business Day prior to the Revolving reimburse any LC Disbursement as provided in this Section 2.4 or repay any LC Loan Commitment Termination Dateresulting therefrom shall be absolute, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to unconditional and irrevocable, and shall be performed strictly in accordance with the terms and conditions of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, this Agreement or any Credit Document, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in reliance upon any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by any Issuing Bank or the representations and warranties Lenders (as the case may be) in good faith under a Letter of Company herein set forthCredit against presentation of a draft or other document that does not fully comply with the terms of such Letter of Credit, (iv) any amendment or waiver of or any consent to departure from all or any terms of any of the Transaction Documents, (v) the existence of any claim, setoff, defense or other right which the Borrower may have at any time against the beneficiary of such Letter of Credit (or any Persons for whom such beneficiary may be acting), any one Issuing Bank, the Administrative Agent, any Lender or more Revolving Lenders mayany other Person, whether in connection with this Agreement, the transactions contemplated hereby, by any other Transaction Document or by any unrelated transaction, (vi) any breach of contract or dispute among or between the Borrower, any Issuing Bank, the Administrative Agent, any Lender or any other Person, (vii) any non-application or misapplication by the beneficiary of the Letter of Credit of the proceeds of any LC Disbursement or any other act or omission of such beneficiary in connection with such Letter of Credit, (viii) any failure to preserve or protect any Collateral, any failure to perfect or preserve the perfection of any Lien thereon, or the release of any of the Collateral securing the performance or observance of the terms of this Agreement or any of the other Credit Documents, (ix) the failure of any Lender to make a Loan as contemplated by Section 2.4(c), or (x) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder; provided that, in each case, payment by the Issuing Banks or the Lenders (except as provided in subsection 3.1B(ii)the case may be) shall not have constituted gross negligence, bad faith or willful misconduct. Neither the Administrative Agent, the Lenders nor the Issuing Banks, nor any of their Affiliates, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of such Person; provided that the foregoing shall not be obligated toconstrued to excuse the Issuing Banks or the Lenders under the LC Loan facility from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that are determined by a court having jurisdiction to have been caused by (i) the failure by the Issuing Banks or the Lenders (as the case may be) to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof or (ii) the refusal of the Issuing Banks or the Lenders (as the case may be) to issue such Letters a Letter of Credit in accordance with the provisions terms of this subsection 3.1Agreement. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of the Issuing Banks or the Lenders (as the case may be), each such Person shall be deemed to have exercised care in each such determination and each refusal to issue a Letter of Credit. In furtherance of the foregoing and without limiting the generality thereof, the parties hereto agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Banks or the Lenders (as the case may be) may, in good faith and in their respective sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g) If any Event of Default shall occur and be continuing, on the third (3rd) Business Day following the date on which the Borrower receives notice from the Administrative Agent in accordance with Section 7.2 demanding the deposit of Cash Collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Collateral Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in Dollars in cash equal to the total LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that Company that, upon the occurrence of any Event of Default with respect to the Borrower described in Section 7.1(f) or Section 7.1(g), the obligation to deposit such Cash Collateral shall not request that become effective immediately, and such deposit shall become immediately due and payable in Dollars, without demand or other notice of any Revolving Lender issue (kind. Each such deposit shall be held by the Collateral Agent in accordance with the terms hereof as collateral for the payment and no Revolving Lender performance of the Obligations by the Borrower. The Administrative Agent shall issue):
have exclusive dominion and control, including the exclusive right to direct withdrawal, over such account. Other than any income earned on the investment of such deposits, which investments shall be made at the option and sole discretion of (i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 knowledge that so long as an Event of Default has occurred shall be continuing, the Administrative Agent (acting at the direction of the Required Lenders) and is continuing (ii) at any other time, the Borrower, in each case, in Permitted Investments and at the risk and expense of the Borrower, such deposits shall remain uninvested. Income or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Collateral Agent at the direction of the Administrative Agent (acting at the direction of the Required Lenders) to reimburse the Issuing Banks or the Lenders (as the case may be) for LC Disbursements or LC Loans for which any such Person has not been waived in accordance with subsection 10.6) at reimbursed and, to the time such Issuing Lender must elect whether or extent not to allow such extension;
(iv) any Standby Letter of Credit issued so applied, shall be held for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 satisfaction of the Bankruptcy Code);
Obligations of the Borrower or, if the maturity of the Loans has been accelerated, be applied to satisfy other Obligations. If the Borrower is required to provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event of Default, such amount (vto the extent not applied as aforesaid) any Commercial Letter of Credit having an expiration date shall be returned to the Borrower within three (a3) later than the earlier of (1) the date which is five Business Days prior after all Events of Default have been cured or waived to the Revolving Loan Commitment Termination Date and (2) satisfaction of the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than DollarsRequired Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Bloom Energy Corp), Credit Agreement (Bloom Energy Corp)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions hereof, including, without limitation, the conditions precedent in Section 4.2, the limitations set forth in the definition of this Agreement the term “Issuing Bank,” and any applicable requirements of Section 2.14, each Issuing Bank agrees, severally and not jointly, to issue, from time to time prior to the Commitment Termination Date, at the request of the Borrower and on behalf of the Lenders and in reliance upon the representations and warranties of Company herein set forthon their obligations under this Section 2.12, any one or more Revolving Lenders mayletters of credit (each a “Letter of Credit”) for the Borrower’s account in a face amount in each case of at least $500,000 or, but (except as provided if denominated in subsection 3.1B(ii)) shall not be obligated toany Alternative Currency, issue such the Dollar Equivalent of at least $500,000, and in an aggregate undrawn face amount for all Letters of Credit in accordance with at any time outstanding not to exceed the provisions applicable Letters of this subsection 3.1Credit Maximum Amount; provided provided, that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
Issuing Bank (i) any Letter of Credit if, after giving effect shall be required to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) issue any Letter of Credit denominated in a currency other than Dollarsnot set forth in such Issuing Bank’s Issuing Bank Agreement, and (ii) shall issue a Letter of Credit pursuant to this Section 2.12 if, after the issuance thereof, (x) the outstanding Loans and L/C Obligations would thereby exceed the Revolving Credit Commitment Amount (determined in accordance with Section 10.19) then in effect, (y) the aggregate undrawn face amount of all Letters of Credit then outstanding would at any time thereafter (giving effect to the respective scheduled expiration dates thereof and any automatic extensions provided therein) exceed the Letters of Credit Maximum Amount scheduled to be in effect at any such time thereafter (giving effect to any reductions resulting from the scheduled expiration of the Commitments of Declining Lenders not offset by new or increased Commitments of Replacement Lenders or Extending Lenders pursuant to Section 2.16), or (z) the issuance of such Letter of Credit would violate any legal or regulatory restriction then applicable to such Issuing Bank or any Lender as notified by such Issuing Bank or such Lender to the Administrative Agent before the date of issuance of such Letter of Credit. Letters of Credit and any increases and extensions thereof hereunder may be issued in face amounts of either U.S. Dollars or any Alternative Currency; provided, that the Dollar Equivalent amount of the principal amount of outstanding Loans and Letters of Credit in any Alternative Currencies determined, with respect to each such Loan or Letter of Credit, in accordance with Section 10.19 on the date such Loan is funded, continued or converted, or the date such Letter of Credit is issued, increased and extended, as applicable, shall not exceed in the aggregate the Alternative Currency Sublimit. If the Administrative Agent notifies the Issuing Banks that any conditions precedent set forth in Section 4.2 have not been satisfied and instruct the Issuing Banks to suspend the issuance, amendment, renewal or extension of Letters of Credit, no Issuing Bank shall issue, amend, renew or extend any Letter of Credit without the consent of the Administrative Agent until such notice is withdrawn by the Administrative Agent. Notwithstanding anything to the contrary set forth in this Agreement, a Letter of Credit issued hereunder may contain a statement to the effect that such Letter of Credit is issued for the account of any Member of the Consolidated Group; provided, that notwithstanding such statement, the Borrower shall be the actual account party for all purposes of this Agreement for such Letter of Credit and such statement shall not affect the Borrower’s reimbursement obligations hereunder with respect to such Letter of Credit.
Appears in 2 contracts
Samples: Credit Agreement (Transocean Ltd.), Credit Agreement (Transocean Ltd.)
Letters of Credit. In order to assure the Executive the prompt payment of amounts due him under Paragraph 1 of this Agreement, the Company agrees to secure and to keep in place until December 31, 2005 one or more irrevocable letter(s) of credit from Xxxxx Xxxxx Xxxx, Xxxxxx Xxxxxx of America, or another bank reasonably acceptable to the Executive in the amount of US$138,000 which shall allow the Executive (or his legal representative) to draw down amounts that in the date of this Agreement is estimated as net amount (after withheld taxes and other mandatory payments to government entities) due him under Paragraph 1 of this Agreement upon certification by the Executive (or his legal representative) and AOLA that payment is due the Executive pursuant to this Agreement; provided, that in the event of the withdrawal covered by the letter(s) of credit (i) the parties shall work jointly and in good faith to ensure timely payment of the taxes and payments, and (ii) based on required withholdings and payments, the parties shall determine if the amount of the withdrawal received by the Executive is greater or less than the actual net amount and, if necessary, the appropriate supplementary payment shall be promptly made. When the Company makes a payment of the amounts due the Executive according to Paragraph 1, the Executive shall promptly cooperate with the Company if the Company requests that the Executive help it to cause the cancellation or termination of the letter(s) of credit (including, if so requested by the Company, to provide the issuing bank a certification stating that the letter(s) of credit is(are) no longer necessary and may requestbe cancelled). Failure by the Company to maintain the letter(s) of credit in force or to renew them at least 30 days before their expiry, shall be grounds for the Executive to receive the Retention Bonus 30 days before expiry of the letter(s) of credit. When, by omission or through incapacity, the Company fails to maintain or renew said letter(s) of credit, the Company shall notify the Executive of this fact within three working days. The Company undertakes to not prevent, hinder or delay the Executive from exercising the guarantee provisions stipulated in this Paragraph 5, and, in addition, undertakes to cooperate with the Executive to promptly provide the bank the aforementioned certification when a payment is due the Executive and to take the necessary steps so that the Executive may exercise and obtain the benefits of said guarantee provisions, in the absence of any fraudulent or illegal conduct by the Executive with respect to said exercise. In the event that a dispute should arise over whether or not the Executive is owed a payment in accordance with the provisions Paragraph 1 of this subsection 3.1Contract, from time as a result of which AOLA has refused to time during provide the period from the Effective Date aforementioned certification, upon resolution of said dispute pursuant to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions Paragraph 8 of this Agreement and in reliance upon Contract, the representations and warranties Company shall pay all legal expenses of Company herein set forth, any one or more Revolving Lenders maythe Executive if the Executive prevails, but (except as provided in subsection 3.1B(ii)) each party shall not be obligated to, issue such Letters of Credit in accordance with pay its own expenses if the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollarsprevails.
Appears in 2 contracts
Samples: Executive Retention Agreement, Executive Retention Agreement (America Online Latin America Inc)
Letters of Credit. Company In addition to Borrower requesting that Lenders make Loans pursuant to Section 2.1.1, Borrower may request, in accordance with the provisions of this subsection 3.1Section 2.16.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day date that is ten (10) days prior to the Revolving Loan Commitment Termination Maturity Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company Borrower for the general corporate purposes specified in the definition of Company or a Subsidiary Letters of CompanyCredit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)Section 2.16.2.2) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1Section 2.16.1; provided that Company Borrower shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization sum of: (a) the aggregate principal amount of Revolving Loan Commitments the outstanding Loans plus (b) the Letter of Credit Usage would exceed the Revolving Loan Commitment Available Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0005,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five the Business Days Day prior to the Revolving Loan Commitment Termination Maturity 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 providedPROVIDED, further FURTHER that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge that an Event of Default has occurred and is continuing (and has not been waived in accordance with subsection 10.6Section 8.6) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Corporate Office Properties Trust), Senior Secured Revolving Credit Agreement (Corporate Office Properties Trust)
Letters of Credit. Company may request(a) Each Letter of Credit (other than an Existing Letter of Credit) shall be issued (or the stated maturity thereof extended or terms thereof modified or amended) on not less than three Business Days' prior written notice thereof to the Administrative Agent (which shall promptly distribute copies thereof to the Lenders) and the relevant Issuing Bank; provided, however, that no such notice shall be required in accordance connection with the provisions automatic extension of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters an Evergreen Letter of Credit payable on Credit. Each such notice (a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)"REQUEST FOR ISSUANCE") shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
specify (i) any Letter of Credit ifthe date (which shall be a Business Day, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then but in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date no event later than the earlier of date that occurs ten (a10) five Business Days prior to the Revolving Loan Commitment Credit Termination Date and Date) of issuance of such Letter of Credit (b) or the date of effectiveness of such extension, modification or amendment) and the stated expiry date thereof (which is shall be no later than the date that occurs one year from the date of issuance of such Standby Letter of Credit (or, in the case of any extension of a Letter of Credit; provided that , one year from the immediately preceding clause date of effectiveness of such extension), and in any event no later than the Letter of Credit Expiration Date (subject, in the case of any Evergreen Letter of Credit, to automatic annual renewal or extension)), (ii) the proposed stated amount of such Letter of Credit (which shall be in Dollars and shall not be less than $100,000) and (iii) such other information as shall demonstrate compliance of such Letter of Credit with the requirements specified therefor in this Agreement and the relevant Issuing Bank Agreement. Each Request for Issuance shall be irrevocable unless modified or rescinded by the Borrower not less than one Business Day prior to the proposed date of issuance (or effectiveness) specified therein. Not later than 12:00 noon on the proposed date of issuance (or effectiveness) specified in such Request for Issuance, and upon fulfillment of the applicable conditions precedent and the other requirements set forth herein and in the relevant Issuing Bank Agreement, such Issuing Bank shall issue (or extend, amend or modify) such Letter of Credit and provide notice and a copy thereof to the Administrative Agent, which shall promptly furnish copies thereof to the Lenders.
(b) shall not prevent any Each Lender severally agrees with such Issuing Lender Bank to participate in the Extension of Credit resulting from agreeing that a Standby the issuance or, pursuant to Section 4.02(d), deemed issuance (or extension, modification or amendment) of such Letter of Credit, in the manner and the amount provided in Section 4.04(b), and the issuance (or, pursuant to Section 4.02(d), deemed issuance) of such Letter of Credit will automatically shall be extended for one or more successive periods not deemed to exceed one year each unless be a confirmation by such Issuing Bank and each Lender elects of such participation in such amount.
(c) Notwithstanding anything herein to the contrary, the aggregate LC Outstandings of all Letters of Credit outstanding at any one time shall not to extend for any such additional period; and provided, further that such Issuing Lender shall elect not to extend such Standby exceed the Letter of Credit if it has knowledge Sublimit.
(d) Subject to the requirements of subsection (a) above, upon at least four Business Days prior written notice to the Administrative Agent, the Borrower may request that an Event Existing Letter of Default has occurred and is continuing (and has not been waived in accordance with subsection 10.6) at the time such Issuing Lender must elect whether or not Credit be deemed to allow such extension;
(iv) any Standby be a Letter of Credit issued for hereunder. Such request shall be accompanied by a copy of such Existing Letter of Credit and a consent of the purpose bank or other financial institution that issued such Existing Letter of supporting Credit to its deemed issuance hereunder. If the Administrative Agent determines that such Existing Letter of Credit meets the requirements specified therefor in this Agreement (including the requirements set forth in clauses (i) and (ii) of subsection (a) trade payables or above and in subsection (bc) any Indebtedness constituting “antecedent debt” above) and the relevant Issuing Bank Agreement, then (as that term is used in Section 547 i) the Administrative Agent shall promptly provide a copy of the Bankruptcy Code);
(v) any Commercial such Existing Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date Lenders and (2ii) subject to the date which is 180 days from satisfaction of the date of issuance of conditions precedent set forth in Section 6.02, and notwithstanding any reference in such Commercial Existing Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any credit facility pursuant to which such Existing Letter of Credit denominated was issued, such Existing Letter of Credit shall be deemed to constitute a Letter of Credit and to have been issued hereunder on the date set forth in a currency other than Dollarsthe Borrower's notice to the Administrative Agent (by the Issuing Bank that issued or was deemed to have issued such Existing Letter of Credit under such credit facility); provided, however, that nothing contained in this Section 4.02 shall extend, modify or otherwise affect the existing expiry date under any such Existing Letter of Credit. Notwithstanding the foregoing, the parties hereto acknowledge and agree that the letters of credit set forth in Schedule 4.02(d) hereto shall constitute Letters of Credit for all purposes hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Sierra Pacific Resources /Nv/), Credit Agreement (Sierra Pacific Resources /Nv/)
Letters of Credit. Company may request, in accordance with (a) Upon the provisions terms and subject to the conditions of this subsection 3.1Agreement, from time and in reliance upon the representations, warranties and covenants of the Borrower made herein, each Issuing Bank agrees to time issue, under the joint responsibilities of the Banks having Commitments, to the extent permitted by law and subject to the Uniform Custom Practices of the International Chamber of Commerce governing Letters of Credit (Publication No. 500 or any successor thereto), one or more Letters of Credit on the application of and for the account of the Borrower, during the period from the Effective Closing Date to but excluding the fifth Business Day 30 days prior to the Revolving Loan Commitment Termination Credit Maturity Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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) Stated Amount of Letters of Credit outstanding at any time, plus the aggregate amount of all unreimbursed draws under such outstanding Letters of Credit, shall not prevent at any Issuing Lender from agreeing that a Standby Letter of Credit will automatically be extended for one or more successive periods not to time exceed one year each unless the L/C Availability in effect at such Issuing Lender elects not to extend for any such additional periodtime; and provided, further that such Issuing Lender shall elect not to extend such Standby at the time the Borrower requests the issuance of a Letter of Credit if it and after giving effect to the issuance thereof, there has knowledge that not occurred and is not continuing a Default or an Event of Default has occurred Default. It is understood and agreed by the parties hereto that amounts drawn under such Letters of Credit shall become immediately due and payable by the Borrower to the Issuing Bank, for the ratable accounts of the Administrative Agent and the Banks, and shall bear interest at the rate then applicable to Revolving Credit Loans that are Base Rate Loans, and, if not paid forthwith, shall, (i) if there is continuing Availability, be added to the Loan Account as Revolving Credit Loans and shall be immediately due and payable upon the Revolving Credit Maturity Date (or, if earlier, upon acceleration of the Loans), and has (ii) if there is insufficient Availability, be immediately due and payable, bearing interest until paid at the rate set forth in Section 2.15.
(b) To minimize the risk of issuance of any Letter of Credit that would exceed the then-current L/C Availability, each Issuing Bank that is not been waived the Administrative Agent shall, prior to becoming an Issuing Bank, agree with the Administrative Agent and the Borrower as to reporting and other procedures to be followed by such Issuing Bank prior to and following the issuance of each Letter of Credit, so as to minimize the risk of issuance of any Letter of Credit that might exceed the then-current L/C Availability and to permit the Administrative Agent to accurately bill the Borrower and account to the Banks for Letter of Credit fees xxxxble for the account of the Banks. Notwithstanding the foregoing, the Borrower acknowledges that it is the unconditional obligation of the Borrower to ensure that at no time shall any Letter of Credit be drawn or outstanding that exceeds the then-current L/C Availability.
(c) Upon the issuance of each Letter of Credit by the Issuing Bank, each Bank shall be deemed to automatically have purchased a participation in such Letter of Credit in accordance with subsection 10.6) at its Commitment Percentage, and each Bank severally agrees that it shall be absolutely liable, without regard to the time occurrence of any Default or Event of Default or any other condition precedent whatsoever, to the extent of such Bank's Commitment Percentage thereof, to reimburse the Issuing Bank on demand for the amount of each draft paid by such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Bank under each Letter of Credit issued for to the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as extent that term such amount is used in Section 547 of not reimbursed by the Bankruptcy Code);
(v) any Commercial Letter Borrower pursuant hereto. In addition, all Letters of Credit having an shall, unless the Administrative Agent and the Banks otherwise agree in writing, have a stated expiration date (a) not to exceed one year and shall, in any event, expire not later than the earlier of five (15) the date which is five Business Days days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; orMaturity Date.
(vid) any Letter To evidence such Letters of Credit denominated in Credit, the Borrower shall enter into, with the Issuing Bank, the Administrative Agent and the Banks, such agreements and execute such customary instruments and documents as the Issuing Bank, the Administrative Agent and the Banks reasonably require, including, but not limited to, a currency other than Dollarsletter of credit application and agreement.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Gamestop Corp), Revolving Credit Agreement (Gamestop Corp)
Letters of Credit. In addition to Company requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(iv) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(v), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding (and including) the fifth Business Day thirtieth (30th) day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided PROVIDED that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00020,000,000 (any amount which is denominated in a currency other than Dollars being determined by reference to the applicable Exchange Rate for such currency as at any date of determination);
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 knowledge been notified by Administrative Agent 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1X) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2Y) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(viv) any Letter of Credit denominated in a currency other than Dollarsthat does not provide for sight payment.
Appears in 2 contracts
Samples: Credit Agreement (Alliance Imaging Inc /De/), Credit Agreement (Alliance Imaging Inc /De/)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to During the Revolving Loan Commitment Termination DatePeriod, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject subject to the terms and conditions hereof, Issuing Bank agrees to issue Letters of this Agreement and Credit for the account of Borrower; provided, (i) each Letter of Credit shall be denominated in reliance upon Dollars; (ii) the representations and warranties stated amount of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) each Letter of Credit shall not be obligated to, issue less than $250,000 or such Letters of Credit in accordance with the provisions of this subsection 3.1lesser amount as is acceptable to Issuing Bank; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(iiii) any Letter of Credit if, after giving effect to such issuance, in no event shall the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
; (iiiv) any Letter of Credit if, after giving effect to such issuance, in no event shall the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; (v) in no event shall any standby Letter of Credit have an expiration date later than the earlier of (a1) five Business Days prior to the Revolving Loan Commitment Termination Date and (b2) the date which is one year from the date of issuance of such Standby standby Letter of Credit; provided that (vi) in no event shall any commercial Letter of Credit have an expiration date later than the immediately preceding clause earlier of (b1) the Revolving Commitment Termination Date and (2) the date which is one year from the date of issuance of such commercial Letter of Credit; and (vii) Issuing Bank shall be under no obligation to issue any Letter of Credit if the issuance of such Letter of Credit would violate one or more policies of Issuing Bank applicable to letters of credit generally and not prevent any solely to letters of credit issuable to Borrower. Subject to the foregoing, Issuing Lender from agreeing Bank may agree that a Standby standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each each, unless such Issuing Lender Bank elects not to extend for any such additional period; , and provided, further so notifies the beneficiary thereof 30 days in advance that such standby Letter of Credit will not be so extended; provided that Issuing Lender Bank shall elect not to extend any such Standby Letter of Credit if it has knowledge received written notice 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 Bank must elect whether or not to allow such extension;
(iv) ; provided, further, that if any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term Lender is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior a Defaulting Lender, Issuing Bank shall not be required to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) issue any Letter of Credit denominated unless Issuing Bank has entered into arrangements reasonably satisfactory to it and Borrower to eliminate Issuing Bank’s risk with respect to the participation in a currency other than DollarsLetters of Credit of the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International)
Letters of Credit. Company In addition to Borrower requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(ii) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iii), Borrower may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company Borrower for the general corporate purposes specified in the definition of Company or a Subsidiary Letters of CompanyCredit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company Borrower shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the lesser of the Revolving Loan Commitment Amount Commitments or the Borrowing Base then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00015,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten days prior to the Revolving Loan Commitment Termination Date 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 (but subject to clause (a) above) 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, provided further that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge that an Event of Default or Potential 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used denominated in Section 547 of the Bankruptcy Code);a currency other than Dollars; or
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 2 contracts
Samples: Credit Agreement (Winsloew Furniture Inc), Credit Agreement (Winsloew Furniture Inc)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day 10th day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, DB shall, and any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0003,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten days prior to the Revolving Loan 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 further, that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);payables; or
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five 10 Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 2 contracts
Samples: Credit Agreement (IntraLinks Holdings, Inc.), Credit Agreement (IntraLinks Holdings, Inc.)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuanceAgreement, the Total Utilization Issuing Lender, on behalf of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter Lenders, agrees to issue for the account of Credit ifthe Borrower during the period from and including the Effective Date to, after giving effect to such issuancebut excluding, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and one or more letters of credit (b) the date which is one year from the date of issuance of such Standby each a “Letter of Credit; provided that ”) up to a maximum aggregate Stated Amount at any one time outstanding not to exceed the immediately preceding clause L/C Commitment Amount. The existing letters of credit listed on Schedule 2.4(a) issued by KeyBank in its capacity as “Agent” under the Existing Credit Agreement (bthe “Prior Agent”) shall not prevent any be deemed to be Letters of Credit issued hereunder and the Prior Agent and the Revolving Loan Lenders shall have the same rights and obligations with respect to such Letters of Credit as the Issuing Lender from agreeing that a Standby and Revolving Loan Lenders would have if such Letters of Credit had been issued after the date hereof. Notwithstanding anything to the contrary contained in this Section 2.4., the Issuing Lender shall not be obligated to issue, amend, extend, renew or increase any Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each at a time when any other Revolving Loan Lender is a Defaulting Lender, unless such the Issuing Lender elects not to extend for any such additional period; and provided, further is satisfied that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior participation therein will otherwise be fully allocated to the Revolving Loan Commitment Termination Date Lenders that are not Non-Defaulting Lenders consistent with Section 3.11.(c) and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable Defaulting Lender shall have no participation therein, except to the applicable extent the Issuing Lender has entered into arrangements with the Borrower or such Defaulting Lender which are satisfactory to the Issuing Lender in its reasonable discretion; or
(vi) it good faith determination to eliminate the Issuing Lender’s Fronting Exposure with respect to any Letter such Defaulting Lender, including the delivery of Credit denominated in a currency other than Dollarscash collateral.
Appears in 2 contracts
Samples: Credit Agreement (Kite Realty Group, L.P.), Credit Agreement (Kite Realty Group Trust)
Letters of Credit. Company may requestDuring the Revolving Commitment Period, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior subject to the Revolving Loan Commitment Termination Dateterms and conditions hereof, that one or more Revolving Lenders Issuing Bank agrees to issue Letters of Credit payable on a sight basis at the request of and for the account of Company for in the general corporate purposes aggregate amount up to but not exceeding the Letter of Company or a Subsidiary Credit Sublimit; provided, (i) each Letter of Company. Subject to Credit shall be denominated in Dollars; (ii) the terms and conditions stated amount of this Agreement and in reliance upon the representations and warranties each Letter of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) Credit shall not be obligated to, issue less than $50,000 or such Letters of Credit in accordance with the provisions of this subsection 3.1lesser amount as is acceptable to Issuing Bank; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(iiii) any Letter of Credit if, after giving effect to such issuance, in no event shall the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
; (iiiv) any Letter of Credit if, after giving effect to such issuance, in no event shall the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; (v) in no event shall any Letter of Credit have an expiration date later than the earlier of (a1) five Business Days thirty days prior to the Revolving Loan Commitment Termination Date Date, and (b2) the date which that is one year from the date of issuance of such Standby Letter of Credit; provided that the immediately preceding clause (bvi) in no event shall not prevent any Issuing Lender from agreeing that a Standby Letter of Credit will automatically be extended for issued if the issuance thereof would violate one or more successive periods provisions of any applicable law, rule, or regulation or one or more policies of Issuing Bank applicable to letters of credit; (vii) each Letter of Credit shall be in form and substance reasonably satisfactory to Issuing Bank and issued in accordance with Issuing Bank’s standard operating procedures; and (viii) with respect to any Letter of Credit to be issued by GSB, such Letter of Credit shall be subject to the immediately succeeding sentence; provided, Issuing Bank shall 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 knowledge received written notice from Company, Administrative Agent, or any Lender 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 Bank must elect whether or not to allow such extension;
; provided, further, in the event any Lender is a Defaulting Lender, Issuing Bank shall not be required to issue any Letter of Credit or extend the expiry date or increase the amount of any outstanding Letter of Credit unless Issuing Bank has entered into arrangements satisfactory to it and Company to eliminate Issuing Bank’s risk with respect to the participation in Letters of Credit of the Defaulting Lender, including by Cash Collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage in an amount not less than the Minimum Collateral Amount. With respect to any Letter of Credit to be issued by GSB, without the consent of GSB, such Letter of Credit shall (i) have a stated final expiration date, (ii) not permit the transfer or assignment thereof (or the right to draw thereunder) without the prior written consent of GSB, (iii) not permit cancellation thereof without the consent of the beneficiary thereof, (iv) not be subject to any Standby Letter of Credit issued for the purpose of supporting (a) trade payables rules or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later practices other than the earlier International Standby Practices 1998, International Chamber of (1) Commerce Publication No. 590 or such later supplement to or revision thereof as is in effect at the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date time of issuance of such Commercial Letter of Credit or (b“ISP”), (v) that is otherwise unacceptable not cause the aggregate number of outstanding Letters of Credit issued by GSB under this Agreement at any time to the applicable Issuing Lender in its reasonable discretion; or
exceed ten (10), (vi) any Letter not have more than one (1) beneficiary, (vii) have been the subject of Credit denominated in a currency written notice of the Company’s request for issuance thereof that the Company has given Xxxxxxx Xxxxx Bank USA not less than three (3) Business Day’s prior to such requested issuance, (viii) not permit reduction of the amount thereof other than Dollarson an annual, quarterly, or monthly basis, (ix) for purposes of a demand for payment thereunder, require physical presentation to GSB of an original or copy thereof, together with any amendments thereto, (x) have attached thereto as an exhibit a form of demand for payment thereunder, (xi) not permit more than three (3) demands for payment thereunder, and (xii) in connection with any demand for payment thereunder, not require disbursement of such payment to the beneficiary thereof within seventy-two hours after such demand for payment is made.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (ONE Group Hospitality, Inc.), Credit and Guaranty Agreement (ONE Group Hospitality, Inc.)
Letters of Credit. Company Borrowers may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day 30th day prior to the Revolving Loan Commitment Termination Maturity Date, that one or more Revolving Lenders Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company Borrowers (in the case of Closing Date Letters of Credit, for the general corporate purposes of Company or a Subsidiary supporting obligations of Companythe type set forth on Schedule 3.1A(i) annexed hereto, and, in the case of all other Letters of Credit, for the purposes described in subsection 3.1B(ii)(b)). Subject The original amount of each Lender's Letter of Credit Commitment is set forth opposite its name on Schedule 2.1 annexed hereto and the aggregate original amount of the Letter of Credit Commitments is $118,000,000; provided, however, that the Letter of Credit Commitments of Lenders shall be adjusted to give effect to any assignments of the Letter of Credit Commitments pursuant to subsection 10.1B and shall be reduced from time to time by the amount of any reductions thereto made pursuant to subsection 2.4. Notwithstanding anything herein to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forthcontrary, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company Borrowers shall not request that any Revolving Issuing Lender issue (and no Revolving Issuing Lender shall not issue):
(i) any Letter of Credit Credit:
(a) if, after giving effect to such issuance, the Total aggregate Credit Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount aggregate Letter of Credit Commitments then in effect;
(iib) any with respect to Closing Date Letters of Credit only, if the obligations to be supported by such Letter of Credit are not of a type identified on Schedule 3.1A(i) annexed hereto;
(c) with respect to Closing Date Letters of Credit only, if, after giving effect to such issuance, the Letter maximum aggregate amount which is or at any time thereafter may be available for drawing under Letters of Credit Usage issued to support an obligation of a type identified on Schedule 3.1A(i) annexed hereto would exceed $50,000,000the correlative amount set forth for such obligation on such Schedule (as such amount may be reduced from time to time pursuant to subsection 2.4A(v));
(iiid) any Standby Letter of Credit having an expiration date later than the earlier of (a) five the 5th Business Days Day prior to the Revolving Loan Commitment Termination Maturity Date and (b) the date which is one year three years 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 to a date not later than the 5th Business Day prior to exceed one year each the Maturity Date 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 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 must elect whether or not to allow such extension;
extension (iv) with it being agreed and understood that Issuing Lender shall provide Borrowers with prompt notice of any Standby Letter such extension of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial a Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretionbeen denied); or
(vie) any Letter of Credit denominated in a currency other than Dollars.
Appears in 2 contracts
Samples: Credit Agreement (Danielson Holding Corp), Credit Agreement (Covanta Energy Corp)
Letters of Credit. In addition to Company requesting that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(iii) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iv), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving -------- Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00010,000,000;
(iii) any Standby Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage in respect of all other Standby Letters of Credit would exceed $5,000,000;
(iv) any Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1X) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2Y) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars. An Issuing Lender is under no obligation to issue any Letter of Credit if at the time of request for such issuance:
(a) any order, judgment or decree of any governmental authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing such Letter of Credit, or any requirement of law applicable to the Issuing Lender or any directive (whether or not having the force of law) from any governmental authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular, or shall impose upon the Issuing Lender with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Issuing Lender in good xxxxx xxxxx material to it;
(b) any requested Letter of Credit does not provide for drafts, or is not otherwise in form and substance reasonably acceptable to the Issuing Lender, or the issuance of a Letter of Credit may violate any policies of the Issuing Lender applicable to customers similar to Company and credits of a type similar to the transactions contemplated by this Agreement; or
(c) the requested Letter of Credit provides for payment thereunder sooner than the Business Day following the presentation to the Issuing Lender of the documentation required thereunder.
Appears in 2 contracts
Samples: Credit Agreement (Diamond Brands Operating Corp), Credit Agreement (Diamond Brands Operating Corp)
Letters of Credit. Company Borrower may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day date that is 15 days prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders the Issuing Bank issue Letters of Credit payable on a sight basis for the account of Company Borrower for the general corporate purposes specified in the definition of Company or a Subsidiary Standby Letters of CompanyCredit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders may, but the Issuing Bank shall (except as provided in subsection 3.1B(ii)the case of Letters of Credit (and notices and applications therefor) shall not be obligated to, which meet the requirements of this Agreement) issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company Borrower shall not request that any Revolving Lender the Issuing Bank issue (and no Revolving Lender the Issuing Bank shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000100,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 the Issuing Lender Bank (but subject to clause (a)) 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 the Issuing Lender Bank elects not to extend for any such additional period; and provided, further further, that such the Issuing Lender Bank shall elect not to extend such Standby Letter of Credit if it has knowledge that an Event of Default or Potential Event of Default has occurred and is continuing (and has not been waived in accordance with subsection 10.6) at the time such the Issuing Lender Bank must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars; and
(vi) any Letter of Credit that is otherwise unacceptable to the applicable Issuing Bank in its reasonable discretion. Notwithstanding anything to the contrary herein and without limiting the other conditions set forth herein, no Issuing Bank shall be under any obligation to issue any Letter of Credit at a time when there is a Defaulting Lender unless the obligations of such Defaulting Lender with respect to such Letter of Credit shall have been reallocated to non-Defaulting Lenders pursuant to subsection 2.9D and/or cash collateralized by the Defaulting Lender or Borrower in accordance with subsection 2.9E on or prior to the date of issuance of such Letter of Credit.
Appears in 2 contracts
Samples: Credit Agreement (Isle of Capri Casinos Inc), Credit Agreement (Isle of Capri Casinos Inc)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. (a) Subject to and upon the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one so long as no Default or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 knowledge that an Event of Default has occurred and is continuing continuing, the Issuing Lender will, at any time and from time to time on and after the Amendment Effective Date and prior to the earlier of (i) the seventh day prior to the Revolving Credit Facility Maturity Date and has (ii) the Revolving Credit Facility Termination Date, and upon request by the Borrower in accordance with the provisions of SECTION 2.17(B), issue for the account of the Borrower one or more irrevocable standby letters of credit denominated in Dollars and in a form customarily used or otherwise approved by the Issuing Lender (together with all amendments, modifications and supplements thereto, substitutions therefor and renewals and restatements thereof, collectively, the "Letters of Credit"). The Stated Amount of each Letter of Credit shall not be less than such amount as may be acceptable to the Issuing Lender. Notwithstanding the foregoing:
(i) No Letter of Credit shall be issued the Stated Amount upon issuance of which (i) when added to all other Letter of Credit Outstandings at such time, would exceed $25,000,000 or (ii) when added to all other Letter of Credit Outstandings at such time (exclusive of Reimbursement Obligations that are repaid with the proceeds of, and simultaneously with the incurrence of, Revolving Credit Loans) and the aggregate principal amount of all Revolving Credit Loans and Swingline Loans then outstanding, would exceed the Total Revolving Credit Commitment at such time;
(ii) No Letter of Credit shall be issued that by its terms expires more than one (1) year after its date of issuance or the seventh day prior to the Revolving Credit Facility Maturity Date, whichever is earliest; provided, however, that a Letter of Credit may, if requested by the Borrower and approved by the Issuing Lender, provide by its terms, and on terms acceptable to the Issuing Lender, for renewal for successive periods of one year or less (but not beyond the seventh day prior to the Revolving Credit Facility Maturity Date), unless and until the Issuing Lender shall have delivered a notice of nonrenewal to the beneficiary of such Letter of Credit; and
(iii) The Issuing Lender shall be under no obligation to issue any Letter of Credit if, at the time of such proposed issuance, (A) any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain the Issuing Lender from issuing such Letter of Credit, or any Requirement of Law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Lender with respect to such Letter of Credit any restriction or reserve or capital requirement (for which the Issuing Lender is not otherwise compensated) not in effect on the Amendment Effective Date, or any unreimbursed loss, cost or expense that was not applicable, in effect or known to the Issuing Lender as of the Amendment Effective Date and that the Issuing Lender in good xxxxx xxxxx material to it, or (B) the Issuing Lender shall have actual knowledge, or shall have received notice from any Lender, prior to the issuance of such Letter of Credit that one or more of the conditions specified in SECTION 3.2 are not then satisfied (or have not been waived in accordance with subsection 10.6writing as required herein) at or that the time issuance of such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for would violate the purpose provisions of supporting SUBSECTION (aI) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of above unless the Bankruptcy Code);
(v) any Commercial Required Lenders otherwise authorize the Issuing Lender to issue such Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than DollarsCredit.
Appears in 1 contract
Letters of Credit. Company In addition to Borrower requesting that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(iii), Borrower may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day one hundred eightieth (180th) day prior to the Revolving Loan Commitment Termination Final Maturity Date, that one or more Revolving Lenders the Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company Borrower for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders the Issuing Lender may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company Borrower shall not request that any Revolving the Issuing Lender issue (and no Revolving the Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed Three Million Dollars ($50,000,0003,000,000);
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days thirty (30) days prior to the Revolving Loan Commitment Termination Final Maturity 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 such 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 the Issuing Lender elects not to extend for any such additional period; and provided, further that such the Issuing Lender shall not elect not to extend such Standby Letter of Credit if it has 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 the Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days thirty (30) days prior to the Revolving Loan Commitment Termination Final Maturity Date and (2) the date which is 180 one hundred eighty (180) days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion;
(vi) any Letter of Credit after the Final Maturity Date; or
(vivii) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Letters of Credit. 3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS THEREIN.
A. LETTERS OF CREDIT. In addition to Company requesting that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(iii) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iv), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided PROVIDED that Company shall not request that any Revolving Issuing Lender issue (and no Revolving Issuing Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided 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 providedPROVIDED, further FURTHER that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge been notified by Administrative Agent 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1X) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2Y) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(viv) any Letter of Credit denominated in a currency other than Dollarsthat does not provide for sight payment.
Appears in 1 contract
Letters of Credit. Company In addition to Borrower requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(ii) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iii), Borrower may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company Borrower for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) Issuing Lender shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company Borrower shall not request that any Revolving Issuing Lender issue (and no Revolving Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;; or
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;15,000,000; or
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 providedprovided further, further that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge that [a Potential Event of Default or] 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 must elect whether or not to allow such extension;; or
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1a) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2b) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(viv) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Samples: Credit Agreement (Rose Hills Co)
Letters of Credit. In addition to Company requesting that Lenders make Loans pursuant to subsection 2.1A, Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definition of Company or a Subsidiary Standby Letters of CompanyCredit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00035,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;, and in no event will any such extensions extend beyond the Commitment Termination Date; and
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Letters of Credit. 3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS THEREIN.
A. LETTERS OF CREDIT. In addition to Borrowers requesting that Lenders make Loans pursuant to subsection 2.1A, Company may request, in accordance with the provisions of 70 this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day 30th day prior to the Revolving Loan Commitment Termination Date, that one or more Lenders having a US Tranche Revolving Lenders Loan Commitment issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company each Borrower herein set forth, any one or more Lenders having a US Tranche Revolving Lenders Loan Commitment may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Lender having a US Tranche Revolving Lender Loan Commitment issue (and no Lender having a US Tranche Revolving Lender Loan Commitment shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of US Tranche Revolving Loan Commitments would exceed the US Tranche Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000US$25,000,000;
(iii) [Intentionally Omitted];
(iv) [Intentionally Omitted];
(v) [Intentionally Omitted];
(vi) [Intentionally Omitted];
(vii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which that 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 further, that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has 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 must elect whether or not to allow such extension;
(ivviii) [Intentionally Omitted];
(ix) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables if the aggregate maximum amount under all Standby Letters of Credit issued for the payment of trade payables would exceed US$750,000 or (b) any Indebtedness constituting “"antecedent debt” " (as that term is used in Section 547 of the Bankruptcy Code);
(vx) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which that is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2) 71 the date which that is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or;
(vixi) any Letter of Credit denominated in a currency other than US Dollars or Canadian Dollars; or
(xii) any Letter of Credit to be issued at a tenor other than on a sight basis.
Appears in 1 contract
Samples: Priority Secured Credit Agreement (Loews Cineplex Entertainment Corp)
Letters of Credit. Company (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 thirty (30) days prior to the Revolving Credit Maturity Date, the Issuing Lender shall issue such Letters of Credit as the Borrower may requestrequest upon the delivery of a written request in the form of Exhibit E 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 the Letter of Credit Commitment, (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 (x) the Total Commitment and (y) 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 from a Lender that such conditions have not been satisfied. Each Letter of Credit Request shall be executed by an 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 Agent 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 Revolving Credit 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. Issuing Lender shall honor drawings in accordance with the provisions terms of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters applicable Letter of Credit payable on a sight basis for if strictly presented in accordance with the account terms of Company for the general corporate purposes applicable Letter of Company or a Subsidiary of Company. Subject Credit, and subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forthAgreement, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly Borrower may, during the foregoing period but subject to the terms of this Agreement, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed by Borrower and terminated.
(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 a statement as to the purpose for which such Letter of Credit shall be used (which purpose shall be in accordance with the provisions terms of this subsection 3.1; provided that Company Agreement) and shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any state whether such Letter of Credit ifis being issued under availability with respect to a Tranche A Loan, after giving effect to such issuance, the Total Utilization of Revolving a Tranche B Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior or a Tranche C Loan. The Borrower shall further deliver to the Revolving Loan Commitment Termination Date and Issuing Lender such additional applications (b) which application as of the date which hereof is one year from in the date form of Exhibit F attached hereto) 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 Standby Letter of Credit; provided that in the immediately preceding clause event of any conflict, the terms of this Agreement shall control.
(bc) shall not prevent any The Issuing Lender from agreeing that a Standby shall, subject to the conditions set forth in this Agreement, issue the Letter of Credit will automatically be extended for one on or more successive periods not before five (5) Business Days following receipt of the documents last due pursuant 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 §2.10(b). Each Letter of Credit if it has knowledge that an Event of Default has occurred shall be in form and is continuing (and has not been waived in accordance with subsection 10.6) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior substance reasonably satisfactory to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable 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 Letter of Credit. No Lender’s obligation to participate in a Letter of 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%) per annum 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 (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 for Tranche A 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 within five (5) days of receipt of an invoice from the Agent delivered 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 telecopy, email, 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 and to the extent 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 is 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 draw and at the Federal Funds Effective Rate plus one percent (1%) for each day thereafter. Further, such Lender shall be deemed to have assigned any and all payments made of principal and 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 Lender was required to fund pursuant to this §2.10(f) until such amount has been funded (as a result of such assignment or otherwise). In the event of any 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 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 Letter of Credit pursuant to §2.10(c) by the Issuing Lender, but prior to the 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 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); orprovided, 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 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, telecopy, email 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 denominated 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 currency other than Dollarsresult of the gross negligence or willful misconduct of the Issuing Lender as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods.
(k) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to the beneficiary thereof, the Issuing Lender shall also deliver to Borrower an electronic copy of such Letter of Credit or amendment.
Appears in 1 contract
Letters of Credit. Company may request2.2.1. The L/C Issuer hereby agrees, on the terms and conditions set forth in accordance with the provisions this Agreement, to issue stand-by and commercial letters of this subsection 3.1credit (each, a “Letter of Credit”) and to renew, extend, increase, decrease or otherwise modify each Letter of Credit from time to time during the period from and including the Effective Date to but excluding the fifth Business Day and prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance Date upon the representations and warranties request of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1Borrower; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any immediately after each such Letter of Credit if, after giving effect to such issuanceis issued or modified, the Total Utilization aggregate outstanding principal amount of all outstanding L/C Obligations shall not exceed $100,000,000, and the aggregate principal amount of all Revolving Loan Commitments would Credit Loans and Swing Line Loans and all outstanding L/C Obligations shall not exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Credit Commitment. Each Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having shall have an expiration expiry date not later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; issuance, subject to renewal terms allowing for annual extensions, provided that the immediately preceding clause (b) in no event 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit have a final expiry which is later than the thirtieth Business Day prior to the Termination Date.
2.2.2. Subject to Section 2.2.1, the Borrower shall give the L/C Issuer notice at least one (1) Business Day prior to the proposed date of issuance or modification of each Letter of Credit, specifying the account party (which must be Borrower or a Subsidiary), the beneficiary, the proposed date of issuance (or modification) and the expiry date of such Letter of Credit, and describing the proposed terms of such Letter of Credit and the nature of the transactions proposed to be supported thereby. The issuance or modification by the L/C Issuer of any Letter of Credit shall, in addition to the conditions precedent set forth in Section 3 (the satisfaction of which the L/C Issuer shall have no duty to ascertain), be subject to the conditions precedent that such Letter of Credit shall be satisfactory to the L/C Issuer and that Borrower and the account party (if other than Borrower) shall have executed and delivered such application agreement and/or such other instruments and agreements relating to such Letter of Credit as the L/C Issuer shall have reasonably requested (each, a “Letter of Credit Application Agreement”). In the event of any conflict between the terms of this Agreement and the terms of any Letter of Credit Application Agreement, the terms of this Agreement shall control.
2.2.3. Notwithstanding anything to the contrary contained herein or in any Letter of Credit Application, the L/C Issuer shall not be under any obligation to issue any requested 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 legal requirement 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 Effective Date, or shall impose upon 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) except as otherwise agreed by the L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars;
(c) a default of any Bank’s obligations to fund under Section 2.2.7 exists or any Bank is at such time a Defaulting Bank hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such Bank to eliminate the L/C Issuer’s risk with respect to such Bank; or
(d) the beneficiary of a Letter of Credit which is requested to be issued does not accept the proposed Letter of Credit.
2.2.4. Upon the issuance of each Letter of Credit, the Borrower shall (i) pay a fee to the Administrative Agent, for the pro-rata benefit of all Banks, equal to, as of any date of determination thereof, the amount set forth on the Pricing Schedule, and (ii) pay to the L/C Issuer for its own account an issuance fee equal to 0.125% of the face amount of such Letter of Credit.
2.2.5. In the event that the beneficiary of any Letter of Credit requested to be issued hereunder will not accept a Letter of Credit issued by the L/C Issuer, the L/C Issuer will use commercially reasonable efforts to arrange for another Bank to issue the requested Letter of Credit. The Borrower shall pay any issuance or fronting fees charged by the issuing Bank, and the Borrower acknowledges that such fees may be higher than the issuance fee provided for in Section 2.2.4.
2.2.6. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the L/C Issuer or the Bank, the L/C Issuer hereby grants to each Bank, and each Bank hereby acquires from the L/C Issuer, a participation in such Letter of Credit equal to such Bank’s Pro Rata Share of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Bank hereby absolutely and unconditionally agrees to pay to the L/C Issuer such Bank’s Pro Rata Share of each payment made by the L/C Issuer upon any drawing and not reimbursed by the Borrower on the Letter of Credit Payment Date as provided in Section 2.2.7, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Bank acknowledges and agrees that its obligation to acquire participations pursuant to this Section 2.2.6 in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of any Default or reduction or termination of the Revolving Credit Commitment, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
2.2.7. Upon receipt from the beneficiary of any demand for payment under any Letter of Credit, the L/C Issuer shall promptly notify the Borrower and the Administrative Agent as to the amount to be paid by the L/C Issuer as a result of such demand and the proposed payment date (each a “Letter of Credit Payment Date”). The Borrower and any other applicable account party shall be irrevocably and unconditionally obligated to reimburse the L/C Issuer on or by the applicable Letter of Credit Payment Date for any amounts to be paid by the L/C Issuer upon any drawing under any Letter of Credit, without presentment, demand, protest or other formalities of any kind. All such amounts paid by the L/C Issuer and remaining unpaid by the Borrower and any other applicable account party shall bear interest, payable on demand, for each day until paid at a rate per annum equal to (i) the applicable Adjusted Base Rate for such day if such day falls on or before the applicable Letter of Credit Payment Date and (ii) the sum of 2% plus the Adjusted Base Rate applicable for such day if such day falls after such Letter of Credit Payment Date.
2.2.8. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Bank of such drawing, the payment amount then due from the Borrower in respect thereof and such Bank’s Pro Rata Share thereof. Promptly following receipt of such notice, each Bank shall pay to the Administrative Agent (for the account of the L/C Issuer) its Pro Rata Share of the payment then due from the Borrower, in the same manner as provided in Section 2.1 with respect to Revolving Credit Loans made by such Bank, and the amounts so paid to the Administrative Agent shall be deemed Revolving Credit Loans for purposes of this Agreement.
2.2.9. If after the date hereof, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the L/C Issuer with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall impose, modify or deem applicable any tax, reserve, special deposit or similar requirement against or with respect to or measured by reference to Letters of Credit issued or to be issued hereunder, and the result shall be to increase the cost to the L/C Issuer of issuing or maintaining any Letter of Credit, or reduce any amount receivable hereunder by the L/C Issuer in respect of any Letter of Credit (which increase in cost, or reduction in amount receivable, shall be the result of the L/C Issuer’s reasonable allocation of the aggregate of such increases or reductions resulting from such event), then, upon demand by the L/C Issuer, the Borrower agrees to pay to the L/C Issuer, from time to time as specified by the L/C Issuer, such additional amounts as shall be sufficient to compensate the L/C Issuer for such increased costs or reductions in amounts received by the L/C Issuer. A certificate of the L/C Issuer submitted by the L/C Issuer to the Borrower shall be conclusive as to the amount thereof in the absence of manifest error.
2.2.10. The obligations of Borrower and any other applicable account parties under this Section 2.2 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which Borrower or any of the foregoing account parties may have or have had against the L/C Issuer or any beneficiary of a Letter of Credit. The Borrower and the applicable account parties further agree with the L/C Issuer that the obligation for reimbursement in respect of any Letter of Credit shall not be affected by the validity or genuineness of documents or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged, or any dispute between or among the Borrower and any other applicable account parties, or any of their Affiliates, the beneficiary of any Letter of Credit or any financing institution or other party to whom any Letter of Credit may be transferred or any claims or defenses whatsoever of the Borrower or any other applicable account parties, or any of their Affiliates, against the beneficiary of any Letter of Credit or any such transferee. The responsibility of the L/C Issuer to the Borrower shall be only to determine that the documents (including each demand for payment) delivered under each Letter of Credit in connection with such presentment shall be in conformity in all material respects with such Letter of Credit. The L/C Issuer shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit. The Borrower and any other applicable account parties agree that any action taken or omitted by the L/C Issuer under or in connection with each Letter of Credit and the related drafts and documents, if done in good faith and without gross negligence or willful misconduct, shall be binding upon them and shall not put the L/C Issuer under any liability to any of them.
2.2.11. The L/C Issuer shall be entitled to rely, and shall be fully protected in relying upon, any Letter of Credit, draft, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by the L/C Issuer.
2.2.12. The Borrower hereby agrees to indemnify and hold harmless the L/C Issuer, and its respective directors, officers and employees from and against any and all claims and damages, losses, liabilities, costs or expenses which the L/C Issuer may incur (or which may be claimed against the L/C Issuer by any Person whatsoever) 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 or any actual or proposed use of any Letter of Credit, including, without limitation, any claims, damages, losses, liabilities, costs or expenses which the L/C Issuer may incur by reason of or on account of the L/C Issuer issuing any Letter of Credit which specifies that the term “beneficiary” included therein includes any successor by operation of law of the named beneficiary, but which Letter of Credit does not require that any drawing by any such successor beneficiary be accompanied by a copy of a legal document, satisfactory to the L/C Issuer, evidencing the appointment of such successor beneficiary; provided that Borrower shall not be required to indemnify the L/C Issuer for any claims, damages, losses, liabilities, costs or expenses (x) to the extent, but only to the extent, caused by (i) the willful misconduct or gross negligence of the L/C Issuer in determining whether a request presented under any Letter of Credit complied with the terms of such Letter of Credit or (ii) the L/C Issuer’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 such Letter of Credit or (y) which are the subject of or are incurred in connection with any litigation or proceeding with respect to which (i) the Borrower or any other applicable account parties, or their Affiliates, on the one hand, and (ii) the L/C Issuer, on the other hand, are directly opposing parties and with respect to which a final, non-appealable judgment has been rendered in favor of the Borrower or such other applicable account party or their Affiliates by a court of competent jurisdiction. Nothing in this Section 2.2.12 is intended to limit the obligations of Borrower under any other provision of this Agreement.
2.2.13. The L/C Issuer may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced L/C Issuer and the successor L/C Issuer. The Administrative Agent shall notify the Banks of any such replacement of the L/C Issuer. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced L/C Issuer pursuant to Section 2.2.4. From and after the effective date of any such replacement, (i) the successor L/C Issuer shall have all the rights and obligations of the L/C Issuer under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “L/C Issuer” shall be deemed to refer to such successor or to any previous L/C Issuer, or to such successor and all previous L/C Issuers, as the context shall require. After the replacement of an L/C Issuer hereunder, the replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights and obligations of an L/C Issuer under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
Appears in 1 contract
Samples: Credit Agreement (Saia Inc)
Letters of Credit. Company In addition to Borrower requesting that Lenders make Loans pursuant to subsection 2.1, Borrower may request, in accordance with the provisions of this subsection, on and after the date on which all of the conditions set forth in subsection 3.1, from time 3.1 are satisfied to time during the period from the Effective Date to but and excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Expiry Date, that Agent or one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for Borrower; provided that, if no Lender is willing to provide any Letter of Credit, Agent shall, if each of the general corporate purposes conditions to issuance of Company or a Subsidiary such Letter of Company. Subject to the terms and conditions of Credit in this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated tois met, issue such Letters Letter of Credit in accordance with the provisions of this subsection 3.1Credit; provided that Company further, that
(i) Borrower shall not request that Agent or any Revolving Lender issue (and no Revolving neither Agent nor any Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effectaggregate of all Commitments;
(ii) Borrower shall not request that Agent or any Lender issue any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00010,000,000;
(iii) Borrower shall not request that Agent or any Lender issue (and neither Agent nor any Lender shall issue) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Commitments would exceed the then applicable Borrowing Base;
(iv) in no event shall Agent or any Lender issue any Commercial Letter of Credit having an expiration date which is (a) not acceptable to such Issuing Lender in its reasonable discretion, (b) more than one hundred eighty (180) days after its date of issuance or (c) later than 30 days prior to the Expiry Date of this Agreement;
(v) in no event shall Agent or any Lender issue any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Expiry Date of this Agreement, and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided that the immediately preceding this clause (b) shall not prevent any Issuing Lender from agreeing (subject to clause (a) of this subsection 2.8A(v)) that a Standby Letter of Credit will automatically be extended annually for one or more successive periods a period 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; orand
(vi) in no event shall Borrower request any Letter of Credit denominated in a currency other than Dollars. The issuance or extension of any Letter of Credit in accordance with the provisions of this subsection shall require the satisfaction of each condition set forth in subsection 3.3; provided, however, the obligation of each Issuing Lender to issue or extend any Letter of Credit is subject to the condition that (y) such Issuing Lender believed in good faith that all condi- tions under subsections 2.8A and 3.3 to the issuance or extension of such Letter of Credit were satisfied at the time such Letter of Credit was issued or extended or (z) the satisfaction of any such condition not satisfied had been waived by Requisite Lenders prior to or at the time such Letter of Credit was issued or extended; provided further that Issuing Lender shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons, including, without limitation, an Officers' Certificate from Borrower as to the satisfaction of the condi- tions under subsection 3.3, in determining the satisfaction of any conditions to the issuance or extension of any Letter of Credit or the Total Utilization of Commitments or Letter of Credit Usage then in effect. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from the Issuing Lender a participation in such Letter of Credit and drawings thereunder in an amount equal to such Lender's Pro Rata Share of the maximum amount which is or at any time may become available to be drawn thereunder. Each Letter of Credit supporting the payment of Indebt- edness may (but shall not be required to) provide that the Issuing Lender may pay the beneficiary thereof upon the occur- rence of an Event of Default and the acceleration of the maturity of the Loans or, if payment is not then due to the beneficiary, provide for the deposit of funds in an account to secure payment to the beneficiary and that any funds so deposited shall be paid to the beneficiary of the Letter of Credit if conditions to such payment are satisfied or returned to the Issuing Lender for distribution to Lenders (or, if all Obligations shall have been indefeasibly paid in full, to Borrower) if no payment to the beneficiary has been made and the final date available for drawings under the Letter of Credit has passed. Each payment or deposit of funds by the Issuing Lender as provided in this paragraph shall be treated for all purposes of this Agreement as a drawing duly honored by the Issuing Lender under the related Letter of Credit. Each Issuing Lender (other than Agent) shall send to Agent by telecopy, promptly on the first Business Day of each week, their daily outstanding Commercial Letter of Credit balances for the immediately prior week. Upon the last day of each Fiscal Month, Agent shall deliver to each Lender a report setting forth for such Fiscal Month the aggregate daily amount available to be drawn under all outstanding Letters of Credit.
Appears in 1 contract
Letters of Credit. Company may request, in accordance with (a) Each Letter of Credit shall be issued (or the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth stated maturity thereof extended or terms thereof modified or amended) on not less than three (3) Business Day Days' prior written notice thereof to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject Administrative Agent (which shall promptly distribute copies thereof to the terms Lenders) and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but relevant Issuing Bank. Each such notice (except as provided in subsection 3.1B(ii)a "REQUEST FOR ISSUANCE") shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
specify (i) any the date (which shall be a Business Day) of issuance of such Letter of Credit if(or the date of effectiveness of such extension, after giving effect to such issuance, modification or amendment) and the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
stated expiry date thereof (ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date which shall be no later than the earlier of the date that is five (a5) five Business Days prior to the Revolving Loan Commitment Termination Date Date, and (b) the date which is one year from after the requested date of issuance of such Standby Letter of Credit; issuance, 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 with a 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued tenor may provide for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used renewal thereof for additional one year periods which shall in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) no event extend beyond the date which is five (5) Business Days prior to the Revolving Loan Commitment Termination Date Date), (ii) the proposed stated amount of such Letter of Credit (which shall not be less than $500,000) and (iii) such other information as shall demonstrate compliance of such Letter of Credit with the requirements specified therefor in this Agreement and the relevant Issuing Bank Agreement. Each Request for Issuance shall be irrevocable unless modified or rescinded by the Borrower not less than two (2) days prior to the date which is 180 days from the proposed date of issuance (or effectiveness) specified therein. Not later than 12:00 noon on the proposed date of issuance (or effectiveness) specified in such Commercial Request for Issuance, and upon fulfillment of the applicable conditions precedent and the other requirements set forth herein and in the relevant Issuing Bank Agreement, such Issuing Bank shall issue (or extend, amend or modify) such Letter of Credit or and provide notice and a copy thereof to the Administrative Agent, which shall promptly furnish copies thereof to the Lenders.
(b) that is otherwise unacceptable Each Lender severally agrees with such Issuing Bank to participate in the applicable Issuing Lender Extension of Credit resulting from the issuance (or extension, modification or amendment) of such Letter of Credit, in its reasonable discretion; or
(vi) any the manner and the amount provided in Section 4.04(b), and the issuance of such Letter of Credit denominated shall be deemed to be a confirmation by such Issuing Bank and each Lender of such participation in a currency other than Dollarssuch amount.
(c) Notwithstanding anything herein to the contrary, the aggregate stated amount of all Letters of Credit outstanding at any one time shall not exceed $100,000,000.
Appears in 1 contract
Samples: Credit Agreement (CMS Energy Corp)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. (a) Subject to and upon the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one so long as no Default or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 knowledge that an Event of Default has occurred and is continuing (continuing, the Issuing Bank will, at any time and has not been waived from time to time on and after the Closing Date and prior to the Revolving Credit Facility Termination Date, and upon request by any Borrower in accordance with subsection 10.6the provisions of SECTION 2.17(b), issue for the account of such Borrower one or more irrevocable standby letters of credit denominated in Dollars and in a form customarily used or otherwise approved by the Issuing Bank (together with all amendments, modifications and supplements thereto, substitutions therefor and renewals and restatements thereof, collectively, the "Letters of Credit"). The Stated Amount of each Letter of Credit shall not be less than such amount as may be acceptable to the Issuing Bank. Notwithstanding the foregoing:
(i) Except for Foreign Subsidiary Letters of Credit, no Letter of Credit shall be issued the Stated Amount upon issuance of which (i) when added to all other Letter of Credit Outstandings, excluding Foreign Subsidiary Letters of Credit, at such time, would exceed $5,000,000 or (ii) when added to all other Letter of Credit Outstandings, including Foreign Subsidiary Letter of Credit Outstandings, at such time and the aggregate principal amount of all Revolving Credit Loans then outstanding, would exceed the lesser of (A) the Total Revolving Credit Commitment or (B) the Borrowing Base, at such time;
(ii) No Letter of Credit shall be issued that by its terms expires more than one (1) year after its date of issuance or later than the seventh day prior to the Revolving Credit Facility Maturity Date; provided, however, that a Letter of Credit may, if requested by the Borrowers, provide by its terms, and on terms acceptable to the Issuing Bank, for renewal for successive periods of one year or less (but not beyond the seventh day prior to the Revolving Credit Facility Maturity Date), unless and until the Issuing Bank shall have delivered a notice of nonrenewal to the beneficiary of such Letter of Credit;
(iii) The Issuing Bank shall be under no obligation to issue any Letter of Credit if, at the time of such proposed issuance, (A) any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain the Issuing Lender must elect Bank from issuing such Letter of Credit, or any Requirement of 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 generally or such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to allow such extension;Letter of Credit any restriction or reserve or capital requirement (for which the Issuing Bank is not otherwise compensated) not in effect on the Closing Date, or any unreimbursed loss, cost or expense that was not applicable, in effect or known to the Issuing Bank as of the Closing Date and that the Issuing Bank in good faitx xxxxx xxxerial to it, or (B) the Issuing Bank shall have actual knowledge, or shall have received notice from any Lender, prior to the issuance of such Letter of Credit that one or more of the conditions specified in SECTION 3.3 are not then satisfied or that the issuance of such Letter of Credit would violate the provisions of subsection (i) above; and
(iv) any Standby No Foreign Subsidiary Letter of Credit shall be issued for (A) the purpose Stated Amount upon the issuance of supporting which when (1) added to all other Foreign Subsidiary Letter 35 42 of Credit Outstandings at such time would exceed (a) trade payables $5,000,000 during the time period from Closing to December 31, 1998, and (b) zero dollars thereafter and, (2) when added to all other Letter of Credit Outstandings at such time and the aggregate principal amount of all Revolving Credit Loans then outstanding would exceed the lessor of (a) the Total Revolving Credit Commitment or (b) any Indebtedness constituting “antecedent debt” the Borrowing Base, at such time, and (as that term is used in Section 547 of the Bankruptcy Code);
(vB) any Commercial Letter of Credit having an expiration date (a) later than the earlier of unless (1) the date which Foreign Subsidiary Letter of Credit is five issued to a lender of a Foreign Subsidiary to secure a loan to such Subsidiary and such lender agrees that, to the extent the Issuing Bank makes a payment to such lender under such Letter of Credit, the Issuing Bank shall be subrogated to the rights of such lender on such lender's loan to such Foreign Subsidiary, or (1) the Foreign Subsidiary for whose benefit the Letter of Credit is issued shall agree to undertake jointly and severally with the Borrowers a Reimbursement Obligation in connection with such Letter of Credit.
(b) Whenever any Borrower desires the issuance of a Letter of Credit, such Borrower will notify the Issuing Bank (with copies to the Agent) in writing, by 11:00 a.m., Charlotte, North Carolina time, at least three (3) Business Days Days' (or such shorter period as is acceptable to the Issuing Bank for any given case) prior to the Revolving Loan Commitment Termination Date requested date of issuance thereof. Each such request (each, a "Letter of Credit Request") shall be irrevocable, shall be given in the form of EXHIBIT B-3 and shall be appropriately completed to specify (i) the proposed date of issuance (which shall be a Business Day), (ii) the proposed Stated Amount and expiry date of the Letter of Credit, and (2iii) the name and address of the proposed beneficiary or beneficiaries of the Letter of Credit. Such Borrower will also complete any application procedures and documents customarily required by the Issuing Bank in connection with the issuance of any Letter of Credit. The Agent will, promptly upon its receipt thereof, notify each Lender of the Letter of Credit Request. Upon its issuance of any Letter of Credit, the Issuing Bank will promptly notify each Lender of such issuance and will notify each Lender with a Revolving Credit Commitment of the amount of its participation therein under SECTION 2.17(c).
(c) Immediately upon the issuance of any Letter of Credit, the Issuing Bank shall be deemed to have sold and transferred to each Lender with a Revolving Credit Commitment, and each such Lender (each, in such capacity, an "L/C Participant") shall be deemed irrevocably and unconditionally to have purchased and received from the Issuing Bank, without recourse or warranty, an undivided interest and participation, pro rata to the extent of its Revolving Credit Percentage at such time, in such Letter of Credit, each drawing made thereunder, and the obligations of the Borrowers under this Agreement with respect thereto and any security therefor (including the Collateral) or guaranty pertaining thereto; provided, however, that the fees and other charges relating to Letters of Credit described in SECTIONS 2.7(c) and (d) shall be payable directly to the Issuing Bank as provided therein, and the L/C Participants shall have no right to receive any portion thereof. Upon any change in the Revolving Credit Commitments of any of the Lenders pursuant to SECTION 10.5, with respect to all outstanding Letters of Credit and Reimbursement Obligations there shall be an automatic adjustment to the participations pursuant to this Section to reflect the new Revolving Credit Percentages of the assigning Lender and the Eligible Assignee.
(d) The Borrowers hereby jointly and severally agree to reimburse the Issuing Bank by making payment to the Agent, for the account of the Issuing Bank, in immediately available funds, for any payment made by the Issuing Bank under any Letter of Credit (each such amount so paid until reimbursed, together with interest thereon payable as provided hereinbelow, a "Reimbursement Obligation") immediately after, and in any event on the date which is 180 days of, such payment, together with interest on the amount so paid by the Issuing Bank, to the extent not reimbursed prior to 2:00 p.m., Charlotte, North Carolina time, on the date of such payment or disbursement, (i) for the period from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.the
Appears in 1 contract
Samples: Credit Agreement (Shop Vac Corp)
Letters of Credit. In addition to Company requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(i) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(ii), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Standby Letters of CompanyCredit and Commercial Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) Issuing Lender shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided PROVIDED that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):request:
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0005,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days the date which is fifteen (15) days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided 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 PROVIDED FURTHER that such Issuing Lender shall elect deliver a written notice to Agent setting forth the last day on which Issuing Lender may give notice that it will not to extend such Standby Letter of Credit (the "NOTIFICATION DATE" with respect to such Letter of Credit) at least ten Business Days prior to such Notification Date; and PROVIDED FURTHER that, unless Requisite Lenders otherwise consent, Issuing Lender shall give notice that it will not extend such Letter of Credit if it has 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 on such Issuing Lender must elect whether or not to allow such extensionNotification Date;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1X) the date which is five Business Days fifteen (15) days prior to the Revolving Loan Commitment Termination Date and (2Y) the date which is 180 365 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(viv) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Samples: Credit Agreement (Oakley Inc)
Letters of Credit. In addition to Company requesting that Lenders having a Revolving Loan Commitment make Revolving Loans pursuant to subsection 2.1A(ii), that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iii) and that Offshore Currency Funding Lender make Offshore Currency Loans pursuant to subsection 2.1A(iv), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders Administrative Agent issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Commercial Letters of Credit in accordance with the provisions and Standby Letters of this subsection 3.1Credit; provided PROVIDED that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall Administrative Agent issue)::
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0005,000,000;
(iii) any Standby Letter of Credit having an a final expiration date later than the earlier of (a) five Business Days the date which is 30 days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year 18 months from the date of issuance of such Standby Letter of Credit; provided 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 18 months each unless such Issuing Lender elects not to extend for any such additional period; and providedPROVIDED, further FURTHER that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge received written notice 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 must elect whether or not to allow such extension);
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1X) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2Y) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or;
(viv) any Letter of Credit denominated in a currency other than DollarsDollars or an Offshore Currency; and
(vi) any Letter of Credit denominated in an Offshore Currency if the Dollar Equivalent amount of all outstanding Offshore Currency Loans PLUS the Letter of Credit Usage for outstanding Letters of Credit denominated in Offshore Currencies exceed the Offshore Currency Sublimit.
Appears in 1 contract
Samples: Credit Agreement (Wavetek U S Inc)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations repre- sentations and warranties of Company herein set forthforth herein, any one or more Revolving Lenders mayCompany may request, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided 2.8A, in addition to requesting that Lenders make Loans pursuant to subsections 2.1 and 2.9, that on and after the Closing Date (x) one or more Issuing Lenders issue, and one or more Issuing Lenders will issue, subject to the terms and conditions hereof, Dollar- denominated Standby Letters of Credit and Commercial Letters of Credit for the account of Company and (y) BofA issue, and BofA will 50 issue, Foreign Letters of Credit for the account of one or more Acquisition Newcos. Issuances of Letters of Credit shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):be subject to the following limitations:
(i) No Applicable Account Party shall request that any Lender issue any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) In no event shall any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
Issuing Lender issue (iiiw) any Standby Domestic Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and Date; (bx) subject to the foregoing clause (w), any Standby Letter of Credit having an expiration date which is more than one year after its date of issuance; provided that, subject to the foregoing clause (w) and to subsection 2.8A(iii), this clause (x) shall not prevent any Issuing Lender from the issuing a Standby Letter of Credit having an expiration date up to two years after its date of issuance of if such Standby Letter of CreditCredit will be used by Company in connection with, or in lieu of, posting an appeal bond; provided that provided, further that, subject to the immediately preceding foregoing clause (bw), this clause (x) shall not prevent any Issuing Lender from agreeing that a Standby Letter of Credit will automatically be extended annually for one or more successive periods a period not to exceed one year each unless such Issuing Lender elects gives notice that it will not to extend for any such additional periodextend; and provided, further that such Issuing Lender shall elect deliver a written notice to Administrative Agent setting forth the last day on which such Issuing Lender may give notice that it will not extend (the "NOTIFICATION DATE" with respect to extend such Standby Letter of Credit Credit) at least ten Business Days prior to such Notification Date; provided, further that, unless Requisite Lenders otherwise consent, such Issuing Lender shall give notice that it will not extend if it has 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 on such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables Notification Date; or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(vy) any Commercial Letter of Credit (1) having a tenor other than sight or (2) having an expiration date (a) later than the earlier of (1) the date which is five Business Days more than 180 days after its date of issuance or which is less than 30 days prior to the Revolving Loan Commitment Termination Date and (2) the date or which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable such Issuing Lender in its reasonable discretion; or;
(viiii) Company shall not request that any Issuing Lender issue any Standby Letter of Credit denominated having an expiration date more than one year after its date of issuance which will be used by Company in connection with, or in lieu of, posting an appeal bond if, after giving effect to such issuance, the Letter of Credit Usage in respect of all such Standby Letters of Credit would exceed $25,000,000;
(iv) In no event shall BofA issue (x) any Foreign Letter of Credit having an expiration date later than the Revolving Loan Commitment Termination Date; provided that nothing in this clause (x) shall prevent BofA from issuing a currency Foreign Letter of Credit supporting payment of the last maturing Seller Note Tranche that has an expiration date on or before July 31, 2002 so long as arrangements satisfactory to BofA are made for the cash collateralization of all Obligations in respect of such Foreign Letter of Credit after the Revolving Loan Commitment Termination Date; or (y) any Foreign Letter of Credit having an expiration date later than 15 days after the maturity date of the Seller Note Tranche supported thereby; and
(v) Company shall not request that (x) any Issuing Lender issue any Standby Letter of Credit described in clause (i) of the definition of Standby Letter of Credit for the purpose of supporting any Indebtedness incurred by Acquisition Newcos in connection with the Genie Acquisition unless the Genie Acquisition Commencement Date has occurred, (y) any Issuing Lender issue any Domestic Letter of Credit (other than Dollarsany Standby Letter of Credit described in the immediately preceding clause (x)) if, after giving effect to such issu- ance, the Letter of Credit Usage in respect of Domestic Letters of Credit (other than such Standby Letters of Credit) would exceed $300,000,000 or (z) BofA issue any Foreign Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage in respect of Foreign Letters of Credit would exceed $300,000,000 (calculated using the Exchange Rate in effect on the date of original issuance of the Foreign Letters of Credit).
Appears in 1 contract
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. (a) Subject to the terms and conditions of set forth in this Agreement Agreement, at any time and in reliance upon from time to time from the representations and warranties of Company herein set forthClosing Date through the day that is thirty (30) days prior to the Maturity Date, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) the Issuing Lender shall not be obligated to, issue such Letters of Credit as the Borrower may request upon the delivery of a written request in accordance with the provisions form of this subsection 3.1; Exhibit E hereto (a “Letter of Credit Request”) to the Issuing Lender, provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter no Default or Event of Credit ifDefault shall have occurred and be continuing, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any upon issuance of such Letter of Credit if, after giving effect to such issuanceCredit, the Letter of Credit Usage would Liabilities shall not exceed $50,000,000;
the Letter of Credit Commitment, (iii) any Standby in no event shall the sum of the outstanding principal amount of the Revolving Credit Loans, Swing Loans and Letter of Credit having an expiration date later than Liabilities (after giving effect to any requested Letters of Credit) exceed the earlier Total Commitment, (iv) the conditions set forth in §11 (and, in connection with the issuance of the initial Letter of Credit unless a Loan has already been made, §10) shall have been satisfied, and (av) five Business Days prior 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 Revolving Loan Commitment Termination Date 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 (b) the date 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 is 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 from a Lender that such conditions have not been satisfied. Each Letter of Credit Request shall be executed by an 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 from after the date of issuance thereof (or such longer period as Issuing Lender may approve); provided, however, that a Letter of Credit may contain a provision providing for the automatic extension of the expiration date in the absence of a notice of non-renewal from the Issuing Lender but in no event shall any such provision permit the extension of the expiration date of such Standby Letter of Credit beyond the Maturity Date; provided further, that a Letter of Credit may, as a result of its express terms or as the result of the effect of an automatic extension provision, have an expiration of not more than one year beyond the Maturity Date in which event the Borrower shall be obligated to deliver to the Issuing Lender no later than thirty (30) days prior to the Maturity Date cash collateral for such Letter of Credit for deposit into the Collateral Account in an amount equal to the maximum amount available to be drawn under such Letter of Credit. 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 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 executive officer, president or chief financial officer of the REIT 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 F attached hereto) 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 immediately preceding clause event of any conflict, the terms of this Agreement shall control.
(bc) shall not prevent any The Issuing Lender from agreeing that a Standby shall, subject to the conditions set forth in this Agreement, issue the Letter of Credit will automatically be extended for one on or more successive periods not before five (5) Business Days following receipt of the documents last due pursuant 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 §2.10(b). Each Letter of Credit if it has knowledge that an Event of Default has occurred shall be in form and is continuing (and has not been waived in accordance with subsection 10.6) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior substance reasonably satisfactory to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable 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 Letter of Credit. No Lender’s obligation to participate in a Letter of 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%) per annum 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 (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, 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 without regard to the limitations of §2.7 which shall not apply to any borrowing of Base Rate Loans under this subsection) 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 telecopy, email, 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 and to the extent 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 is 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 draw and at the Federal Funds Effective Rate plus one percent (1%) for each day thereafter. Further, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its Revolving Credit Loans, amounts due with respect to its participations in Letters of Credit and Swing Loans and any other amounts due to it hereunder to the Agent to fund the amount of any drawn Letter of Credit which such Lender was required to fund pursuant to this §2.10(f) until such amount has been funded (as a result of such assignment or otherwise). In the event of any 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 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 Letter of Credit pursuant to §2.10(c) by the Issuing Lender, but prior to the 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 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); orprovided, 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 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, provided, that payment by the Issuing Lender under such Letter of Credit against presentation of such draft or document shall not have been the result of the gross negligence or willful misconduct of the Issuing Lender as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telecopy, email 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 denominated 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, provided, that such other causes shall not have been the result of gross negligence or willful misconduct of the Agent, the Issuing Lender or any Lender as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods. 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 with respect to any Letter of Credit 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 currency other than Dollarsresult of the gross negligence or willful misconduct of the Issuing Lender as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods or as a result of Issuing Lender’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods.
Appears in 1 contract
Samples: Credit Agreement (Monogram Residential Trust, Inc.)
Letters of Credit. Company may requestIf any Event of Default shall occur and be continuing, in accordance with on the provisions of this subsection 3.1, from time to time during Business Day on which the period Borrower receives notice from the Effective Date Collateral Agent demanding the deposit of cash collateral pursuant to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuanceSection 7.07, the Total Utilization Borrower agrees to deposit into the XX Xxxx Collateral Account, an amount in Dollars in cash equal to 105% of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of CreditExposure; provided that the obligation to deposit such amount will become effective immediately, and such deposit will become immediately preceding clause (b) due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default pursuant to Section 7.01(e). Each such deposit pursuant to this Section 7.07 shall not prevent any Issuing Lender from agreeing that a Standby Letter be held by the Collateral Agent as collateral for the payment and performance of the obligations of the Borrower with respect to Letters of Credit will automatically under Section 2.03. The Collateral Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Moneys in such account shall be extended applied by the Collateral Agent to reimburse the applicable Issuing Bank for one or more successive periods not LC Disbursements made by it with respect 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 Letters of Credit if it for which the applicable Issuing Bank has knowledge that not been reimbursed pursuant to Section 2.03 and, to the extent not so applied, shall be held to satisfy drawings under Letters of Credit as they occur. If the Borrower is required to deposit an amount in the XX Xxxx Collateral Account as a result of the occurrence of an Event of Default has occurred and is continuing (and has the Acceleration Date shall not have occurred), such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days of its request; provided that all Events of Default have been waived cured or waived. If at any time either (x) the amount of cash held in accordance with subsection 10.6) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby XX Xxxx Collateral Account exceeds 105% of the Letter of Credit issued for the purpose of supporting (a) trade payables Exposure or (by) any Indebtedness constituting “antecedent debt” cash remains on deposit in the XX Xxxx Collateral Account after all Letters of Credit have either been fully drawn or expired, then such excess or remaining amount shall be (as that term is used A) if the Acceleration Date shall have occurred or Event of Default shall be continuing, applied to the other Obligations, if any, in the order set forth in Section 547 of the Bankruptcy Code);
7.06 above and (vB) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior otherwise, returned to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than DollarsBorrower.
Appears in 1 contract
Letters of Credit. In addition to Company requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(i) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(ii), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day thirtieth day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders Issuing Lender may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided PROVIDED that Company shall not request that any Revolving Issuing Lender issue (and no Revolving Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00040,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided 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 providedPROVIDED, further FURTHER that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge that an Event of Default has occurred and is continuing (and has not been waived in accordance with subsection 10.611.6) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date (provided that this clause (1) shall not be applicable with respect to any Commercial Letter of Credit that is fully supported by cash collateral on terms satisfactory to, and if such later expiration date shall have been agreed to by, Issuing Lender) and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion;
(v) any Letter of Credit, if Issuing Lender has received written notice from any Lender, Administrative Agent or Company, on or prior to the Business Day prior to the requested date of issuance of such Letter of Credit, that one or more of the applicable conditions contained in Section 4 is not then satisfied;
(vi) any Letter of Credit, if, upon issuance, there would be more than ten Letters of Credit with a principal amount of less than $1,000,000 outstanding at any time under this Agreement; or
(vivii) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Letters of Credit. Company (a) Subject to and upon the terms and conditions herein set forth, either Borrower may request, in accordance with the provisions request a Letter of this subsection 3.1, Credit Issuer at any time and from time to time during on or after the period from the Effective Closing Date to but excluding the fifth Business Day and prior to the Revolving Loan Commitment Termination Datedate that is 15 Business Days prior to the Maturity Date to issue, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for that Borrower or any of its Subsidiaries a Letter of Credit (the general corporate purposes Borrower so requesting, a "LETTER OF CREDIT OBLIGOR"), and in support of Company worker compensation, liability insurance, releases of contract retention obligations, contract performance guarantee requirements and other bonding obligations of a Borrower or a any Subsidiary of Company. Subject that Borrower incurred in the ordinary course of its business, and such other standby obligations of a Borrower and any Subsidiary of that Borrower that are acceptable to the Letter of Credit Issuer, and subject to and upon the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters Letter of Credit Issuer agrees to issue from time to time, irrevocable standby letters of credit denominated and payable in accordance with Dollars or an Alternative Currency in such form as may be approved by such Letter of Credit Issuer and the provisions Administrative Agent (each such letter of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue credit, a "LETTER OF CREDIT" and collectively, the "LETTERS OF CREDIT").
(and no Revolving Lender shall issue):
b) Notwithstanding the foregoing, (i) any no Letter of Credit ifshall be issued the Stated Amount of which, after giving effect when added to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage Outstandings at such time, would exceed either (x) $50,000,000;
5,000,000 or (y) when added to the aggregate principal amount of all General Revolving Loans and Swing Line Revolving Loans then outstanding, an amount equal to the Total General Revolving Commitment at such time; (ii) no individual Letter of Credit shall be issued which has an initial Stated Amount less than $100,000 unless such lesser Stated Amount is acceptable to the Letter of Credit Issuer; and (iii) any Standby each Letter of Credit having shall have an expiration expiry date (including any renewal periods) occurring not later than the earlier of (aA) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided that thereof, unless a longer period is approved by the immediately preceding clause (b) shall not prevent any Issuing Lender from agreeing that a Standby relevant 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; Issuer and providedthe Required Lenders, further that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge that an Event of Default has occurred and is continuing (and has not been waived in accordance with subsection 10.6B) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five 15 Business Days prior to the Revolving Loan Commitment Termination Date Maturity Date, in each case on terms acceptable to the Administrative Agent and (2) the date which is 180 days from the date of issuance of such Commercial relevant Letter of Credit Issuer. In addition, no Letter of Credit shall be issued or (b) that is otherwise unacceptable increased in amount if after giving effect thereto the Borrowers would be required to the applicable Issuing Lender prepay General Revolving Loans in its reasonable discretion; oraccordance with section 5.2(b).
(vic) Notwithstanding the foregoing, in the event a Lender Default exists, no Letter of Credit Issuer shall be required to issue any Letter of Credit denominated unless either (i) such Letter of Credit Issuer has entered into arrangements satisfactory to it and the Borrowers to eliminate such Letter of Credit Issuer's risk with respect to the participation in a currency other than DollarsLetters of Credit of the Defaulting Lender or Lenders, including by cash collateralizing such Defaulting Lender's or Lenders' General Revolving Facility Percentage of the Letter of Credit Outstandings; or (ii) the issuance of such Letter of Credit, taking into account the potential failure of the Defaulting Lender or Lenders to risk participate therein, will not cause the Letter of Credit Issuer to incur aggregate credit exposure hereunder with respect to General Revolving Loans and Letter of Credit Outstandings in excess of its General Revolving Commitment, and the Borrowers have undertaken, for the benefit of such Letter of Credit Issuer, pursuant to an instrument satisfactory in form and substance to such Letter of Credit Issuer, not to thereafter incur Loans or Letter of Credit Outstandings hereunder which would cause the Letter of Credit Issuer to incur aggregate credit exposure hereunder with respect to Loans and Letter of Credit Outstandings in excess of its General Revolving Commitment.
Appears in 1 contract
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from From time to time during the period on any Business Day from the Effective Closing Date to but excluding through the earlier of the Revolving Credit Commitment Termination Date and the fifth Business Day prior to the date specified in clause (a) of the definition of “Revolving Loan Credit Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject ,” subject to the terms and conditions hereof, each Issuing Bank agrees to Issue, in accordance with such Issuing Bank’s usual and customary business practices, Letters of this Agreement Credit for the account of the Borrower in the aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided that the Revolving Credit Exposure does not exceed the Revolving Credit Limit; and provided, further, that (i) each Letter of Credit will be denominated in reliance upon the representations and warranties of Company herein set forth, any Dollars or in one or more Revolving Lenders may, but Available Foreign Currencies; (except as provided in subsection 3.1B(ii)ii) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, immediately after giving effect to such issuanceIssuance, in no event will the Revolving Credit Exposure of any Revolving Credit Lender exceed the Revolving Credit Commitment of such Lender; (iii) after giving effect to such Issuance, in no event will the Total Utilization of Revolving Loan Credit Commitments would exceed the Revolving Loan Commitment Amount Credit Limit then in effect;
; (iiiv) any Letter of Credit if, after giving effect to such issuanceIssuance, in no event will the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; and (v) in no event will any Letter of Credit have an expiration date that is not a Business Day or is later than the earlier of (a1) five the fifth Business Days Day prior to the date specified in clause (a) of the definition of “Revolving Loan Credit Commitment Termination Date Date” and (b2) the date which is one year from the date of issuance Issuance of such Standby standby Letter of Credit; provided that Credit or such later date as is acceptable to such applicable Issuing Bank, in each case except to the immediately preceding clause (b) shall not prevent any extent cash collateralized or backstopped pursuant to arrangements reasonably acceptable to the Issuing Lender from agreeing Bank. Subject to the foregoing, each Issuing Bank may agree that a Standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each (and in any event not to exceed the period prescribed in clause (v)(1) above), unless such Issuing Lender Bank elects not to extend for any such additional period; and provided, further provided that such Issuing Lender shall elect Bank will not to extend any such Standby Letter of Credit if it has knowledge received written notice 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 Bank must elect whether or not to allow such extension;
; provided, further, that no Issuing Bank will Issue any Letter of Credit if (ivA) any Standby fee due in connection with, and on or prior to, the Issuance of such Letter of Credit has not been paid, (B) such Letter of Credit is requested to be Issued in a form that is not acceptable to such Issuing Bank or (C) such Issuing Bank will not have received, each in form and substance reasonably acceptable to it and duly executed by the Borrower, the documents that such Issuing Bank generally uses in the ordinary course of business for the Issuance of letters of credit of the type of such Letter of Credit (collectively, the “L/C Reimbursement Agreement”); provided, further, that so long as any Lender is a Defaulting Lender, such Issuing Bank will not be required to Issue any Letter of Credit unless such Issuing Bank has entered into arrangements satisfactory to it and the Borrower to eliminate such Issuing Bank’s risk with respect to the participation in Letters of Credit of the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage, and participating interests in any such newly issued or increased Letter of Credit will be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22 (and Defaulting Lenders will not participate therein). No Issuing Bank shall be under any obligation to issue Letters of Credit if the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally. As of the Closing Date, each of the Existing Letters of Credit shall constitute, for all purposes of this Agreement and the other Credit Documents, a Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.outstanding hereunder. 148797484_8155722702_14
Appears in 1 contract
Letters of Credit. In addition to Company requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(ii) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iii), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day 30th day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0005,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.accordance
Appears in 1 contract
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forthforth herein, any one or more Revolving Lenders mayCompany may request, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided 2.8A, in addition to requesting that Lenders make Loans pursuant to subsections 2.1 and 2.9, that on and after the Effective Date one or more Issuing Lenders issue, and one or more Issuing Lenders will issue, subject to the terms and conditions hereof, Standby Letters of Credit and Commercial Letters of Credit for the account of Company. Issuances of Letters of Credit shall be subject to the following limitations:
(i) Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, (A) the Total Utilization of Revolving Loan Commitments would exceed (B) the Revolving Loan Commitment Amount Commitments then in effecteffect minus any Blocked Availability Amount;
(ii) In no event shall any Issuing Lender issue (w) any Letter of Credit ifhaving an expiration date later than ten days prior to the Revolving Loan Commitment Termination Date; (x) subject to the foregoing clause (w), after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later more than the earlier one year after its date of (a) five Business Days prior issuance; provided that, subject to the Revolving Loan Commitment Termination Date foregoing clause (w) and to subsection 2.8A(iii), this clause (bx) the shall not prevent any Issuing Lender from issuing a Standby Letter of Credit having an expiration date which is one year from the up to two years after its date of issuance of if such Standby Letter of CreditCredit will be used by Company in connection with, or in lieu of, posting an appeal bond; provided that provided, further that, subject to the immediately preceding foregoing clause (bw), this clause (x) shall not prevent any Issuing Lender from agreeing that a Standby Letter of Credit will automatically be extended annually for one or more successive periods a period not to exceed one year each unless such Issuing Lender elects gives notice that it will not to extend for any such additional periodextend; and provided, further that such Issuing Lender shall elect deliver a written notice to Administrative Agent setting forth the last day on which such Issuing Lender may give notice that it will not extend (the "Notification Date" with respect to extend such Standby Letter of Credit Credit) at least ten Business Days prior to such Notification Date; and provided, further that, unless Requisite Lenders otherwise consent, such Issuing Lender shall give notice that it will not extend if it has 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 on such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables Notification Date; or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(vy) any Commercial Letter of Credit (1) having a tenor other than sight or (2) having an expiration date (a) later than the earlier of (1) the date which is five Business Days more than 180 days after its date of issuance or which is less than 30 days prior to the Revolving Loan Commitment Termination Date and (2) the date or which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable such Issuing Lender in its reasonable discretion; or;
(viiii) Company shall not request that any Issuing Lender issue any Standby Letter of Credit having an expiration date more than one year after its date of issuance which will be used by Company in connection with, or in lieu of, posting an appeal bond if, after giving effect to such issuance, the Letter of Credit Usage in respect of all such Standby Letters of Credit would exceed $25,000,000; and
(iv) Company shall not request that any Issuing Lender issue any Letter of Credit denominated if, after giving effect to such issuance, the Letter of Credit Usage in a currency other than Dollarsrespect of Letters of Credit would exceed $500,000,000.
Appears in 1 contract
Letters of Credit. Company In addition to Borrowers requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(ii) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iii), Borrowers may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the joint and several account of Company Borrowers for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit; provided that all such Commercial Letters of Credit shall provide for sight drawings. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrowers herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company Borrowers shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00060,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
; provided, however, that notwithstanding clause (iva) any but subject to the other restrictions of this subsection, Borrowers may request the issuance (on a date prior to five Business Days prior to the Revolving Loan Commitment Termination Date) of a Standby Letter of Credit issued for having an expiration date later than five Business Days prior to the purpose Revolving Loan Commitment Termination Date if Borrowers, at the time of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as such request, make arrangements in form and substance satisfactory to Issuing Lender thereof to cash collateralize such Letter of Credit, provided that term is used in Section 547 Issuing Lender shall be under no obligation to issue such a Letter of Credit if it shall reasonably determine that such cash collateralization arrangements could reasonably be expected to be less favorable to Issuing Lender than the Bankruptcy Code);reimbursement arrangements hereunder with respect to other Letters of Credit; or
(viv) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1X) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2Y) the date which is 180 days from the date of issuance (on a date prior to 30 days prior to the Revolving Loan Commitment Termination Date) of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
provided, however, that notwithstanding clause (viX) any but subject to the other restrictions of this subsection, Borrowers may request the issuance (on a date prior to 30 days prior to the Revolving Loan Commitment Termination Date) of a Commercial Letter of Credit denominated having an expiration date later than the time set forth in clause (X) if Borrowers, at the time of such request, make arrangements in form and substance satisfactory to Issuing Lender thereof to cash collateralize such Letter of Credit, provided that Issuing Lender shall be under no obligation to issue such a currency Letter of Credit if it shall reasonably determine that such cash collateralization arrangements could reasonably be expected to be less favorable to Issuing Lender than the reimbursement arrangements hereunder with respect to other than DollarsLetters of Credit.
Appears in 1 contract
Samples: Credit Agreement (Dominos Inc)
Letters of Credit. In addition to Company requesting that Lenders make Loans pursuant to subsection 2.1A, Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day 30th day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00015,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than DollarsDollars or Canadian dollars that in the reasonable judgment of Administrative Agent or the applicable Issuing Lender is not readily and freely available.
Appears in 1 contract
Samples: Credit Agreement (FTD Inc)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters (a) The Letter of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Commitment.
(i) Subject to the terms and conditions of this Agreement and set forth herein, |US-DOCS\126402975.16140630557.8||
(A) each L/C Issuer agrees, in reliance upon (among other things) the representations agreements of the other 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 30 days prior to the Initial Revolving Credit Maturity Date (or, if such day is not a Business Day, the next preceding Business Day), to issue Letters of Credit denominated in Dollars or an Alternative Currency for the account of each Borrower (but the Letter of Credit may contain a statement that it is being issued for the benefit of a Subsidiary), and warranties to amend or extend Letters of Company herein set forthCredit 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 each Borrower or any one or more of its Restricted Subsidiaries on a pro rata basis in accordance with their respective Pro Rata Share of the Total Revolving Credit Commitments; provided that,
(I) on the Closing Date, the aggregate amount of any Existing Letters of Credit shall be reallocated among the Revolving Credit Lenders mayso that, but (except as provided after giving effect thereto, the Revolving Credit Lenders shall share ratably participations in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with their Pro Rata Share of the provisions Revolving Credit Commitment (after giving effect to any L/C Credit Extension and expiration of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, on the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effectClosing Date);
(iiII) that any Letter of Credit ifissued on behalf of any Restricted Subsidiary (excluding, after giving effect to such issuancefor the avoidance of doubt, the Existing Letters of Credit) shall be issued naming the Borrower as the account party on any such Letter of Credit, but such Letter of Credit Usage would exceed $50,000,000may contain a statement that it is being issued for the benefit of such Restricted Subsidiary;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (bIII) that is otherwise unacceptable no L/C Issuer shall be obligated to the applicable Issuing Lender in its reasonable discretion; or
(vi) make any L/C Credit Extension with respect to any Letter of Credit denominated in a currency other than Dollars.(including, for the avoidance of doubt, the L/C Issuer with respect to the Existing Letters of Credit shall not be required, to amend, extent or renew any Existing Letter of Credit), if, as of the date of such L/C Credit Extension,
Appears in 1 contract
Samples: Credit Agreement (APi Group Corp)
Letters of Credit. Company In addition to Borrowers requesting that Lenders make Revolving 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 Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company Borrowers for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of Company. Credit and Standby Letters of Credit; provided that prior to the Revolving Loan Availability Date Borrowers may not request any Letters of Credit for any purpose other than to support deposits for Specified FF&E. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrowers herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company Borrowers shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effecteffect or if after giving affect to such issuance, Borrowers would not be in compliance with clause (b) of the second paragraph of subsection 2.1A(ii);
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00015,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1X) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2Y) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(viv) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Samples: Credit Agreement (Grand Canal Shops Mall Construction LLC)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to During the Revolving Loan Commitment Termination DatePeriod, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject subject to the terms and conditions hereof, the Issuing Bank agrees to issue Letters of this Agreement and Credit for the account of the Borrower or any of its Subsidiaries in reliance upon the representations and warranties aggregate amount up to but not exceeding the Letter of Company herein set forthCredit Sublimit; provided, any one or more Revolving Lenders may, but (except as provided i) each Letter of Credit shall be denominated in subsection 3.1B(ii)Dollars; (ii) the stated amount of each Letter of Credit shall not be obligated to, issue less than $50,000 or such Letters of Credit in accordance with lesser amount as is acceptable to the provisions of this subsection 3.1Issuing Bank; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(iiii) any Letter of Credit if, after giving effect to such issuance, in no event shall (x) the Total Utilization of Revolving Loan Commitments would Outstandings exceed the lesser of (I) the Inventory Availability Amount and (II) Aggregate Revolving Loan Commitments, (y) the Revolving Credit Exposure of any Lender exceed such Lender’s Revolving Commitment and (z) the Outstanding Amount then in effect;
(ii) any of Letter of Credit if, after giving effect to such issuance, Obligations exceed the Letter of Credit Usage would exceed $50,000,000;
Sublimit; and (iiiiv) in no event shall any Standby standby Letter of Credit having have an expiration date later than the earlier of (a1) five Business Days seven (7) days prior to the Revolving Loan Commitment Termination Date Date, and (b2) the date which is one (1) year from the date of issuance of such Standby standby Letter of Credit; provided that . Subject to the immediately preceding foregoing (other than clause (biv)) shall not prevent any the Issuing Lender from agreeing Bank may agree that a Standby standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one (1) year each each, unless such the Issuing Lender Bank elects not to extend for any such additional period; and provided, further that the Issuing Bank shall not extend any such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge received written notice 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 the Issuing Lender Bank must elect whether or not to allow such extension;
; provided, further, in the event that any Lender is at such time a Defaulting Lender, unless the Issuing Bank has entered into arrangements satisfactory to the Issuing Bank (ivin its sole discretion) with the Borrower or such Defaulting Lender to eliminate the Issuing Bank’s Fronting Exposure with respect to such Lender (after giving effect to Section 2.16(a)(iv) and any Standby Cash Collateral provided by the Defaulting Lender), including by Cash Collateralizing such Defaulting Lender’s Revolving Commitment Percentage of the Outstanding Amount of the Letter of Credit issued for Obligations in a manner reasonably satisfactory to the purpose of supporting (a) trade payables Administrative Agent, the Issuing Bank shall not be obligated to issue or (b) extend any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial hereunder. The Issuing Bank may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (b“SWIFT”) that is otherwise unacceptable to the applicable Issuing Lender in its message or overnight courier, or any other commercially reasonable discretion; or
(vi) any Letter means of Credit denominated in communicating with a currency other than Dollarsbeneficiary.
Appears in 1 contract
Samples: Credit Agreement (Hibbett Inc)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. (a) Subject to the terms and conditions hereof, the Issuing Bank, on behalf of this Agreement the Lenders, and in reliance upon on the representations and warranties agreements of Company herein the Lenders set forthforth in Section 2.13(d), any hereby agrees to issue one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with a face amount not to exceed the provisions Available Letter of this subsection 3.1Credit Commitment determined immediately prior to giving effect to the issuance thereof; provided provided, however, that Company the Issuing Bank shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit unless the conditions precedent to the issuance thereof set forth in Section 3.3 have been satisfied, and shall have no obligation to issue any Letter of Credit if any Default then exists or would be caused thereby or if, after giving effect to such issuance, the Total Utilization of Available Revolving Loan Commitments Commitment or the Available Letter of Credit Commitment would be less than zero; and provided further, however, that at no time shall the total Letter of Credit Obligations outstanding hereunder exceed $20,000,000. Each Letter of Credit shall (i) be denominated in Dollars, and (ii) expire no later than the earlier to occur of (A) the fifth (5th) Business Day prior to the Revolving Loan Maturity Date or (B) one (1) year after its date of issuance (but may contain provisions for automatic renewal; provided that no Default or Event of Default exists on the renewal date or would be caused by such renewal). Each Letter of Credit shall be subject to the Uniform Customs and Practice for Documentary Credits (2007 Revision), or the International Chamber of Commerce Publication No. 500, as applicable, and, to the extent not inconsistent therewith, the laws of the State of New York. The Issuing Bank shall not at any time be obligated to issue, or cause to be issued, any Letter of Credit if such issuance would conflict with, or cause the Issuing Bank to exceed any limits imposed by, any Applicable Law. If a Letter of Credit provides that it is automatically renewable unless notice is given by the Issuing Bank that it will not be renewed, the Issuing Bank shall not be bound to give a notice of non-renewal unless directed to do so by the Required Lenders at least sixty-five (65) days prior to the then scheduled expiration date of such Letter of Credit.
(b) The Borrower may from time to time request the issuance of, and be provided with by the Issuing Bank, Letters of Credit. The Borrower shall execute and deliver to the Administrative Agent and the Issuing Bank a Request for Issuance of Letter of Credit for each Letter of Credit to be issued by the Issuing Bank, not later than 12:00 noon on the fifth (5th) Business Day preceding the date on which the requested Letter of Credit is to be issued, or such shorter notice as may be acceptable to the Issuing Bank and the Administrative Agent. Upon receipt of any such Request for Issuance of Letter of Credit, subject to satisfaction of all conditions precedent thereto as set forth in Section 3.3, the Issuing Bank shall process such Request for Issuance of Letter of Credit and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit requested thereby. The Issuing Bank shall furnish a copy of such Letter of Credit to the Borrower and the Administrative Agent following the issuance thereof. The Borrower shall pay or reimburse the Issuing Bank for normal and customary costs and expenses incurred by the Issuing Bank in issuing, effecting payment under, amending or otherwise administering the Letters of Credit.
(c) At such time as the Administrative Agent shall be notified by the Issuing Bank that the beneficiary under any Letter of Credit has drawn on the same, the Administrative Agent shall promptly notify the Borrower and each Lender with a Revolving Loan Commitment, by telephone or telecopy, of the amount of the draw and, in the case of each Lender with a Revolving Loan Commitment, such Lender’s portion of such draw amount as calculated in accordance with its Revolving Loan Commitment Amount Ratio.
(d) The Borrower hereby agrees to immediately reimburse the Issuing Bank for amounts paid by the Issuing Bank in respect of draws under a Letter of Credit issued at the Borrower’s request. In order to facilitate such repayment, the Borrower hereby irrevocably requests the Lenders having a Revolving Loan Commitment, and such Lenders hereby severally agree, on the terms and conditions of this Agreement (other than as provided in Article 2 with respect to the amounts of, the timing of requests for, and the repayment of Advances hereunder and in Section 3.3 with respect to conditions precedent to Advances hereunder), with respect to any drawing under a Letter of Credit prior to the occurrence of an event described in Sections 8.1(g) or (h), to make an Advance (which Advance may be a LIBOR Advance if the Borrower so requests in a timely manner or may be Converted to a LIBOR Advance as provided in this Agreement) to the Borrower on each day on which a draw is made under any Letter of Credit and in the amount of such draw, and to pay the proceeds of such Advance directly to the Issuing Bank to reimburse the Issuing Bank for the amount paid by it upon such draw. Each Lender having a Revolving Loan Commitment shall pay its share of such Advance by paying its portion of such Advance to the Administrative Agent in accordance with Article 2 and its Revolving Loan Commitment Ratio, without reduction for any set-off or counterclaim of any nature whatsoever and regardless of whether any Default or Event of Default (other than with respect to an event described in Sections 8.1(g) or (h)) then exists or would be caused thereby. If at any time that any Letters of Credit are outstanding, any of the events described in effectSections 8.1(g) or (h) shall have occurred and be continuing, then each Lender having a Revolving Loan Commitment shall, automatically upon the occurrence of any such event and without any action on the part of the Issuing Bank, the Borrower, the Administrative Agent or such Lender, be deemed to have purchased an undivided participation in the face amount of all Letters of Credit then outstanding in an amount equal to such Lender’s Revolving Loan Commitment Ratio of such Letters of Credit, and each Lender having a Revolving Loan Commitment shall, notwithstanding such Default or Event of Default, upon a drawing under any Letter of Credit, immediately pay to the Administrative Agent for the account of the Issuing Bank, in immediately available funds, the amount of such Lender’s participation in such drawn amount (and the Issuing Bank shall deliver to such Lender a loan participation certificate dated the date of the occurrence of such event and in the amount of such Lender’s Revolving Loan Commitment Ratio). The disbursement of funds in connection with a draw under a Letter of Credit pursuant to this Section 2.13(d) shall be subject to the terms and conditions of Article 2. The obligation of each Lender having a Revolving Loan Commitment to make payments to the Administrative Agent, for the account of the Issuing Bank, in accordance with this Section 2.13 shall be absolute and unconditional and no such Lender shall be relieved of its obligations to make such payments by reason of noncompliance by any other Person with the terms of the Letter of Credit or for any other reason. The Administrative Agent shall promptly remit to the Issuing Bank the amounts so received from the other Lenders. Any overdue amounts payable by the Lenders having a Revolving Loan Commitment to the Issuing Bank in respect of a draw under any Letter of Credit shall bear interest, payable on demand, at the Federal Funds Rate.
(e) The Borrower agrees that any action taken or omitted to be taken by the Issuing Bank in connection with any Letter of Credit, except for such actions or omissions as shall constitute gross negligence or willful misconduct on the part of the Issuing Bank, shall be binding on the Borrower as between the Borrower and the Issuing Bank, and shall not result in any liability of the Issuing Bank to the Borrower. The obligation of the Borrower to reimburse the Lenders for Advances made to reimburse the Issuing Bank for draws under the Letter of Credit shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances whatsoever, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Loan Document;
(ii) any Letter amendment or waiver of Credit if, after giving effect or consent to such issuance, any departure from any or all of the Letter of Credit Usage would exceed $50,000,000Loan Documents;
(iii) any Standby improper use which may be made of any Letter of Credit having an expiration date later than the earlier or any improper acts or omissions of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date any beneficiary or transferee 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 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 must elect whether or not to allow such extensionconnection therewith;
(iv) the existence of any Standby claim, set-off, defense or any right which the Borrower may have at any time against any beneficiary or any transferee of any Letter of Credit issued (or Persons for whom any such beneficiary or any such transferee may be acting) or any Lender (other than the purpose defense of supporting (apayment to such Lender in accordance with the terms of this Agreement) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used other Person, whether in Section 547 connection with any Letter of the Bankruptcy Code)Credit, any transaction contemplated by any Letter of Credit, this Agreement or any other Loan Document, or any unrelated transaction;
(v) any Commercial statement or any other documents presented under any Letter of Credit having an expiration date proving to be insufficient, forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect whatsoever;
(a) later than the earlier of (1vi) the date insolvency of any Person issuing any documents in connection with any Letter of Credit;
(vii) any breach of any agreement between the Borrower and any beneficiary or transferee of any Letter of Credit, provided that the same shall not have resulted from the gross negligence or willful misconduct of the Issuing Bank;
(viii) any irregularity in the transaction with respect to which any Letter of Credit is five Business Days prior issued, including, without limitation, any fraud by the beneficiary or any transferee of such Letter of Credit, provided that the same shall not be the result of the gross negligence or willful misconduct of the Issuing Bank;
(ix) any errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, wireless or otherwise, whether or not they are in code, provided that the same shall not be the result of the gross negligence or willful misconduct of the Issuing Bank;
(x) any act, error, neglect, default, omission, insolvency or failure of business of any of the correspondents of the Issuing Bank, provided that the same shall not have constituted gross negligence or willful misconduct of the Issuing Bank;
(xi) any other circumstances arising from causes beyond the control of the Issuing Bank;
(xii) payment by the Issuing Bank under any Letter of Credit against presentation of a sight draft or a certificate which does not comply with the terms of such Letter of Credit, provided that such payment shall not have constituted gross negligence or willful misconduct of the Issuing Bank; and
(xiii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, provided that such other circumstances or happenings shall not have been the result of gross negligence or willful misconduct of the Issuing Bank.
(f) Each Lender having a Revolving Loan Commitment Termination Date shall be responsible for its pro rata share (based on such Lender’s Revolving Loan Commitment Ratio) of any and all reasonable out-of-pocket costs, expenses (2including, without limitation, reasonable legal fees) and disbursements which may be incurred or made by the date which is 180 Issuing Bank in connection with the collection of any amounts due under, the administration of, or the presentation or enforcement of any rights conferred by any Letter of Credit, the Borrower’s or any guarantor’s obligations to reimburse or otherwise. In the event the Borrower shall fail to pay such expenses of the Issuing Bank within ten (10) days after demand for payment by the Issuing Bank, each Lender having a Revolving Loan Commitment shall thereupon pay to the Issuing Bank its pro rata share (based on such Lender’s Revolving Loan Commitment Ratio) of such expenses within five (5) days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable the Issuing Bank’s notice to the applicable Lenders having a Revolving Loan Commitment of the Borrower’s failure to pay; provided, however, that if the Borrower or any guarantor shall thereafter pay such expense, the Issuing Bank will repay to each Lender in its reasonable discretion; orhaving a Revolving Loan Commitment Ratio the amounts received from such Lender hereunder.
(vig) The Borrower agrees that each Advance by the Lenders having a Revolving Loan Commitment to reimburse the Issuing Bank for draws under any Letter of Credit denominated Credit, shall, for all purposes hereunder, be deemed to be an Advance under the Revolving Loan Commitment to the Borrower and shall be payable and bear interest in a currency accordance with all other than DollarsRevolving Loans to the Borrower.
(h) Notwithstanding anything to the contrary contained in this Agreement, this Section 2.13 shall be subject to the terms and conditions of Section 2.15 and Section 2.16.
Appears in 1 contract
Letters of Credit. Company may requestDuring the Revolving Commitment Period, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior subject to the Revolving Loan Commitment Termination Dateterms and(a) conditions hereof, that one or more Revolving Lenders the Issuing Bank agrees to issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes Borrower or any of Company or a Subsidiary its Subsidiaries in the aggregate amount up to but not exceeding the Letter of Company. Subject to Credit Sublimit; provided that (i) each Letter of Credit shall be denominated in Dollars; (ii) the terms and conditions stated amount of this Agreement and in reliance upon the representations and warranties each Letter of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) Credit shall not be obligated to, issue less than $50,000 or such Letters of Credit in accordance with lesser amount as is acceptable to the provisions of this subsection 3.1Issuing Bank; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(iiii) any Letter of Credit if, after giving effect to such issuance, in no event shall (x) the Total Utilization of Revolving Loan Commitments would Outstandings exceed the Aggregate Revolving Loan Commitments, (y) the Revolving Credit Exposure of any Lender exceed such Lender’s Revolving Commitment or (z) the Outstanding Amount then of Letter of Credit Obligations exceed the Letter of Credit Sublimit; and (iv) in effect;
(ii) no event shall any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having have an expiration date later than the earlier of (a1) five Business Days seven days prior to the Revolving Loan Commitment Termination Date and (b2) the date which is one year from the date of issuance of such Standby Letter of Credit; provided that . Subject to the immediately preceding foregoing (other than clause (biv)) shall not prevent any the Issuing Lender from agreeing Bank may agree that a Standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each each, unless such the Issuing Lender Bank elects not to extend for any such additional period; and provided, further provided that the Issuing Bank shall not extend any such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge received written notice 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 the Issuing Lender Bank must elect whether or not to allow such extension;
; provided further that in the event that any Lender is at such time a Defaulting Lender, unless the Issuing Bank has entered into arrangements satisfactory to it (ivin its sole discretion) with the Borrower or such Defaulting Lender to eliminate the Issuing Bank’s Fronting Exposure with respect to such Lender (after giving effect to Section 2.16(a)(iv) and any Standby Cash Collateral provided by the Defaulting Lender), including by Cash Collateralizing such Defaulting Lender’s Revolving Commitment Percentage of the Outstanding Amount of the Letter of Credit issued for Obligations in a manner reasonably satisfactory to the purpose of supporting (a) trade payables Agents, the Issuing Bank shall not be obligated to issue or (b) extend any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial hereunder. The Issuing Bank may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (b“SWIFT”) that is otherwise unacceptable to the applicable Issuing Lender in its message or overnight courier, or any other commercially reasonable discretion; or
(vi) any Letter means of Credit denominated in communicating with a currency other than Dollarsbeneficiary.
Appears in 1 contract
Samples: Credit Agreement (Ebix Inc)
Letters of Credit. 3.1 Issuance of Letters of Credit and Lenders’ Purchase of Participations Therein
A. Letters of Credit. In addition to Company requesting that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(iv), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day date that is 30 days prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that such Letters of Credit shall be issued on a sight basis only and Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, (i) the aggregate Letter of Credit Usage would exceed $50,000,000250,000,000, (ii) the Letter of Credit Usage with respect to Credit Suisse would exceed $150,000,000 or (iii) the Letter of Credit Usage with respect to Citibank N.A. would exceed $100,000,000;
(iii) any Standby Letter of Credit denominated in a currency other than Dollars; or
(iv) any Letter of Credit having an expiration date later than the earlier of (a) the date that is five Business Days prior to the Revolving Loan 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 further, that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge that an Event of Default or Potential 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Letters of Credit. In addition to Company requesting that Domestic Lenders make Domestic Loans pursuant to subsection 2.1A(i), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth tenth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Domestic Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrowers herein set forth, any one or more Revolving Domestic Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Domestic Lender issue (and no Revolving Domestic Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Domestic Commitments would exceed the Revolving Loan Commitment Amount Domestic Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000400,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five the fifth Business Days Day prior to the Revolving Loan 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 that, unless Requisite Lenders otherwise consent, such Issuing Lender shall elect give notice that it will not to extend such Standby Letter of Credit if it has knowledge that an Event of Default has occurred and is continuing (and has not been waived in accordance with subsection 10.6) at on the time last day on which such Issuing Lender must elect whether or may give notice that it will not to allow extend such extensionStandby Letter of Credit;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1X) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2Y) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion;
(v) any Commercial Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage in respect of Commercial Letters of Credit would exceed $100,000,000; or
(vi) any Letter of Credit denominated in a currency other than Dollars or Canadian Dollars. If any Letter of Credit is proposed to be amended at any time, such Letter of Credit, as amended, shall be deemed to be a newly issued Letter of Credit for purposes of the requirements of this subsection 3.1A. Company and Lenders agree that, on and after the Closing Date, the Existing Company Letters of Credit shall for all purposes hereof be deemed to be Letters of Credit issued pursuant to and governed in all respects by the terms of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Safeway Inc)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from and including the Effective Closing Date to but excluding the fifth Business Day 30th day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Restricted Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00015,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than DollarsDollars that in the judgment of Administrative Agent or the applicable Issuing Lender is not readily and freely available.
Appears in 1 contract
Samples: Credit Agreement (United Online Inc)
Letters of Credit. Company In addition to Borrower requesting that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(ii), Borrower may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day thirtieth (30th) day prior to the Revolving Loan Commitment Termination Final Maturity Date, that one or more Revolving Lenders the Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company Borrower for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders the Issuing Lender may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company Borrower shall not request that any Revolving the Issuing Lender issue (and no Revolving the Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed Two Million Five Hundred Thousand Dollars ($50,000,0002,500,000);
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten (10) days prior to the Revolving Loan Commitment Termination Final Maturity 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 such 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 the Issuing Lender elects not to extend for any such additional period; provided that the immediately preceding clause (b) shall not prevent such Issuing Lender from agreeing that a Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each unless the Issuing Lender elects not to extend for any such additional period; and provided, further that such the Issuing Lender shall not elect not to extend such Standby Letter of Credit if it has 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 the Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “"antecedent debt” " (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days thirty (30) days prior to the Revolving Loan Commitment Termination Final Maturity Date and (2) the date which is 180 one hundred eighty (180) days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit after the Final Maturity Date; or
(vii) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Letters of Credit. In addition to Company requesting that Lenders make Revolving Credit Loans pursuant to subsection 2.1, Company may request, in accordance with the provisions of this subsection 3.12.7A and subsection 2.7B, from time on and after the date on which all of the conditions set forth in subsection 3.1 are satisfied to time during the period from the Effective Date to but and excluding the fifth Business Day prior to the Revolving Loan Credit Commitment Termination Date, that NationsBank (or, if NationsBank is unwilling to provide such Letters of Credit, one or more Revolving Lenders Lenders; PROVIDED that, if no other Lender is willing to provide any Letter of Credit, NationsBank shall, if each of the conditions to issuance of such Letter of Credit in this Agreement is met, issue such Letter of Credit) issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes Company, on behalf of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but Material Domestic Subsidiary; PROVIDED that (except as provided in subsection 3.1B(ii)i) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Credit Commitments would exceed the aggregate of all Revolving Loan Commitment Amount then in effect;
Credit Commitments, and (ii) Company shall not request that any Lender issue any Letter of Credit if, after giving effect to such issuance, the aggregate Letter of Credit Usage would exceed $50,000,000;
(iii) 10,000,000. In no event shall any Standby Lender issue any Letter of Credit having an expiration date later than the earlier of (ay) five Business Days prior to the Revolving Loan Credit Commitment Termination Date and Date, as in effect on the date of issuance of such Letter of Credit, or (bz) the date which is one year eighteen months from the date of issuance of such Standby Letter of Credit; provided PROVIDED, that the immediately preceding this clause (bz) shall not prevent any Issuing Lender from agreeing that a Standby Letter of Credit will automatically be extended annually for one or more successive periods a period not to exceed one year each unless such Issuing Lender elects not to extend for any such additional period. The issuance or extension of any Letter of Credit in accordance with the provisions of this subsection 2.7 shall require the satisfaction of each condition set forth in subsection 3.3; and providedPROVIDED, further HOWEVER, the obligation of each Issuing Lender to issue or extend any Letter of Credit is subject to the condition that (i) such Issuing Lender shall elect not believed in good faith that all conditions under subsections 2.7A and 3.3 to extend the issuance or extension of such Standby Letter of Credit if were satisfied at the time such Letter of Credit was issued or extended or (ii) the satisfaction of any such condition not satisfied had been waived by Requisite Lenders prior to or at the time such Letter of Credit was issued or extended; PROVIDED FURTHER that Issuing Lender shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it has knowledge that to be genuine and correct and to have been signed or sent by the proper person or persons, including, without limitation, an Officer's Certificate from Company as to the satisfaction of the conditions under subsection 3.3, in determining the satisfaction of any conditions to the issuance or extension of any Letter of Credit or the Total Utilization of Revolving Credit Commitments or aggregate Letter of Credit Usage then in effect. Immediately upon the issuance of each Letter of Credit (or with respect to the Existing Letters of Credit, upon the Closing Date and satisfaction of the conditions set forth in subsections 3.1 and 3.3), each Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from the Issuing Lender a participation in such Letter of Credit and drawings thereunder in an amount equal to such Lender's Pro Rata Share of the Revolving Credit Commitments of the maximum amount which is or at any time may become available to be drawn thereunder. Each Letter of Credit supporting the payment of Indebtedness may provide that, upon the occurrence of an Event of Default has occurred and is continuing the acceleration of the maturity of the Revolving Credit Loans, the Issuing Lender shall pay the beneficiary thereof if (and has not been waived in accordance with subsection 10.6only if) at payment is then due by the time terms of such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued to such beneficiary, or if such payment is not then due to such beneficiary, may provide (as and to the extent contemplated by the "THEN" clause of Section 8) for the purpose deposit of supporting (a) trade payables or (b) funds in an account of Issuing Lender to secure payment to such beneficiary and that any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial funds so deposited shall be paid to such beneficiary if all conditions to such payment under such Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior are satisfied or returned to the Revolving Loan Commitment Termination Date Issuing Lender for distribution to Lenders (or, if all Obligations shall have been indefeasibly paid in full, to Company) if no payment to such beneficiary has been made and (2) the final date which is 180 days from the date of issuance of available for drawings under such Commercial Letter of Credit has passed. Each payment or (b) that is otherwise unacceptable to deposit of funds by the applicable Issuing Lender as provided in its reasonable discretion; or
(vi) any this paragraph shall be treated for all purposes of this Agreement as a drawing duly honored by the Issuing Lender under the related Letter of Credit denominated in a currency other than DollarsCredit.
Appears in 1 contract
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from From time to time during the period on any Business Day from the Effective Closing Date to but excluding through the earlier of the Revolving Credit Commitment Termination Date and the fifth Business Day prior to the date specified in clause (a) of the definition of “Revolving Loan Credit Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject ,” subject to the terms and conditions hereof, each Issuing Bank agrees to Issue, in accordance with such Issuing Bank’s usual and customary business practices, Letters of this Agreement Credit for the account of the Borrower in the aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided that the Revolving Credit Exposure does not exceed the Revolving Credit Limit; and provided, further, that (i) each Letter of Credit will be denominated in reliance upon the representations and warranties of Company herein set forth, any Dollars or in one or more Revolving Lenders may, but Available Foreign Currencies; (except as provided in subsection 3.1B(ii)ii) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, immediately after giving effect to such issuanceIssuance, in no event will the Revolving Credit Exposure of any Revolving Credit Lender exceed the Revolving Credit Commitment of such Lender; (iii) after giving effect to such Issuance, in no event will the Total Utilization of Revolving Loan Credit Commitments would exceed the Revolving Loan Commitment Amount Credit Limit then in effect;
; (iiiv) any Letter of Credit if, after giving effect to such issuanceIssuance, in no event will the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; and (v) in no event will any Letter of Credit have an expiration date that is not a Business Day or is later than the earlier of (a1) five the fifth Business Days Day prior to the date specified in clause (a) of the definition of “Revolving Loan Credit Commitment Termination Date Date” and (b2) the date which is one year from the date of issuance Issuance of such Standby standby Letter of Credit; provided that Credit or such later date as is acceptable to such applicable Issuing Bank, in each case except to the immediately preceding clause (b) shall not prevent any extent cash collateralized or backstopped pursuant to arrangements reasonably acceptable to the Issuing Lender from agreeing LenderBank. Subject to the foregoing, each Issuing Bank may agree that a Standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each (and in any event not to exceed the period prescribed in clause (v)(1) above), unless such Issuing Lender Bank elects not to extend for any such additional period; and provided, further provided that such Issuing Lender shall elect Bank will not to extend any such Standby Letter of Credit if it has knowledge received written notice 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 Bank must elect whether or not to allow such extension;
; provided, further, that no Issuing Bank will Issue any Letter of Credit if (ivA) any Standby fee due in connection with, and on or prior to, the Issuance of such Letter of Credit has not been paid, (B) such Letter of Credit is requested to be Issued in a form that is not acceptable to such Issuing Bank or (C) such Issuing Bank will not have received, each in form and substance reasonably acceptable to it and duly executed by the Borrower, the documents that such Issuing Bank generally uses in the ordinary course of business for the Issuance of letters of credit of the type of such Letter of Credit (collectively, the “L/C Reimbursement Agreement”); provided, further, that so long as any Lender is a Defaulting Lender, such Issuing Bank will not be required to Issue any Letter of Credit unless such Issuing Bank has entered into arrangements satisfactory to it and the Borrower to eliminate such Issuing Bank’s risk with respect to the participation in Letters of Credit of the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage, and participating interests in any such newly issued or increased Letter of Credit will be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22 (and Defaulting Lenders will not participate therein). No Issuing Bank shall be under any obligation to issue Letters of Credit if the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally. As of the Closing Date, each of the Existing Letters of Credit shall constitute, for all purposes of this Agreement and the other Credit Documents, a Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollarsoutstanding hereunder.
Appears in 1 contract
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to During the Revolving Loan Credit Commitment Termination DatePeriod, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forthhereof, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, each Issuing Bank agrees to issue such Letters of Credit for the account of the Borrowers or any Subsidiary (provided, that in accordance with the provisions case of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit ifissued for a Subsidiary that is not a Guarantor, the Borrower Representative shall be the co-applicant with respect thereto) in the aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided, (i) each Letter of Credit shall be denominated in Dollars or, at the option of the Borrower Representative, in an Alternate Currency; (ii) the stated amount of each Letter of Credit shall not be less than $100,000 or such lesser amount as is acceptable to the applicable Issuing Bank; (iii) after giving effect to such issuance, in no event shall the Total Utilization of Revolving Loan Credit Commitments would exceed the Revolving Loan Commitment Amount Credit Limit then in effect;
; (iiiv) any Letter of Credit if, after giving effect to such issuance, in no event shall the Letter of Credit Usage would Obligations exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; (v) absent the consent of the applicable Issuing Bank to the contrary, no Letters of Credit shall be issued after the date that is ten (10) Business Days prior to the Scheduled Revolving Credit Commitment Termination Date; (vi) absent the consent of the applicable Issuing Bank to the contrary, in no event shall any standby Letter of Credit have an expiration date later than the earlier of (aA) the date that is five (5) Business Days prior to the Scheduled Revolving Loan Credit Commitment Termination Date and (bB) the date which is one year from the date of issuance of such Standby standby Letter of Credit; provided and (vii) absent the consent of the applicable Issuing Bank to the contrary, no commercial Letter of Credit shall have an expiration date later than the earlier of (1) the date that is ten (10) Business Days prior to the immediately preceding clause Scheduled Revolving Credit Commitment Termination Date and (b2) shall not prevent any the date that is one hundred eighty days from the date of issuance of such commercial Letter of Credit. Subject to the foregoing, the Issuing Lender from agreeing Banks may agree that a Standby standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each each, unless such Issuing Lender Bank elects not to extend for any such additional period; and provided, further that the Issuing Banks shall not extend any such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge received written notice 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 Bank must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (NRC Group Holdings Corp.)
Letters of Credit. In addition to Company requesting that Lenders make Revolving Loans pursuant to subsection 2.1A, Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day 30th day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definition of Company or a Subsidiary Letters of CompanyCredit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) Issuing Lender shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Issuing Lender issue (and no Revolving Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the lesser of the Revolving Loan Commitment Amount Commitments then in effect or the Borrowing Base then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0008,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(viv) any Letter of Credit denominated in a currency other than DollarsDollars or Pounds.
Appears in 1 contract
Letters of Credit. Company In addition to Borrower requesting that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(ii), Borrower may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of CompanyBorrower. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders the Issuing Lender may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company Borrower shall not request that any Revolving Issuing Lender issue (and no Revolving Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed Ten Million Dollars ($50,000,00010,000,000) (such maximum amount to be increased to up to Twenty Million Dollars ($20,000,000) at Borrower’s request subject, however, to prior approval by the Issuing Lender);
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days 30 days prior to the Revolving Loan Commitment Termination Date June 30, 2011, and (b) the date which is one year from the date of issuance of such Standby 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 give notice that it will not to extend such Standby Letter of Credit if it has 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to after the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretionDate; or
(viv) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Letters of Credit. (i) The Company may, from time to time, provide to Xxxx one or more Letters of Credit as additional credit support and margin for or to secure prompt and complete payment and performance of all of the Company’s obligations hereunder and under the other Transaction Documents; provided that (A) all costs and expenses (including but not limited to the reasonable costs, expenses, and external attorneys’ fees of Xxxx) of establishing, renewing, substituting, canceling, increasing, and reducing the amount of (as the case may requestbe) the Letters of Credit shall be borne by the Company, (B) no LC Default shall have occurred and be continuing with respect to any such Letter of Credit and (C) as a condition to accepting any such Letter of Credit, the Parties shall agree to such additional terms and conditions with respect thereto as Xxxx may require, including without limitation the Company’s agreement to cause such Letter of Credit to have a minimum available amount and to remain outstanding for a specified period. Upon the occurrence of an LC Default with respect to any Letter of Credit provided to Xxxx hereunder, the Company agrees to deliver a substitute Letter of Credit to Xxxx having an available amount at least equal to that of the Letter of Credit to be replaced on or before the first (1st) Business Day after written demand by Xxxx (or the third (3rd) Business Day if only clause (a) under the definition of LC Default applies). Any Letter of Credit provided to Xxxx under this Section 12.4(c) shall be in addition to, and not in replacement of, the Supplemental LC provided pursuant to the Fee Letter, it being acknowledged that the Supplemental LC shall be subject to the further terms and conditions specified in the Fee Letter.
(ii) A Letter of Credit shall provide that Xxxx may draw upon the Letter of Credit in an amount (up to the face amount for which the Letter of Credit has been issued) that is equal to all amounts that are due and owing from the Company but have not been paid to Xxxx within the time allowed for such payments under this Agreement or any other Transaction Document (including any related notice or grace period or both). A Letter of Credit shall provide that a drawing shall be made on the Letter of Credit upon submission to the bank issuing the Letter of Credit of one or more certificates specifying the amounts due and owing to Xxxx in accordance with the provisions specific requirements of this subsection 3.1the Letter of Credit.
(iii) If the Company shall fail to renew, from time to time during the period from the Effective Date to but excluding the fifth extend or replace a Letter of Credit more than twenty (20) Business Day Days prior to its expiry date, then Xxxx may draw on the Revolving Loan Commitment Termination Dateentire, that undrawn portion of such outstanding Letter of Credit upon submission to the bank issuing such Letter of Credit of one or more Revolving Lenders issue Letters certificates specifying the amounts due and owing to Xxxx in accordance with the specific requirements of Credit payable on the Letter of Credit. Any proceeds received as a sight basis for result of such drawing may, in Aron’s discretion, be applied in payment of any amount due to Xxxx hereunder or under the account other Transaction Documents (including any amount being due under Section 10.1 above) or retained as additional cash collateral and margin to secure the prompt and complete the payment and performance of Company for all of the general corporate purposes of Company or a Subsidiary of Company. Subject ’s obligations hereunder and under the other Transaction Documents; provided that any such cash collateral and margin shall be subject to the terms and conditions of this Agreement Section 12.4(c)(v) below. The Company shall remain liable for any amounts due and in reliance owing to Xxxx and remaining unpaid after the application of the amounts so drawn by Xxxx.
(iv) Provided no Default (of which Xxxx has provided notice to the Company) or Event of Default by the Company has occurred and is continuing, upon the representations and warranties Company’s request, Xxxx shall cooperate with the Company in a commercially reasonable manner to implement a reduction of Company herein set forth, the available amount under any one or more Revolving Lenders may, but (except as outstanding Letters of Credit that have been provided in subsection 3.1B(ii)) shall not be obligated to, issue to Xxxx hereunder by the Company; provided that if any minimum available amount requirement is applicable hereunder with respect to such Letters of Credit Credit, no such reduction shall be made that results in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):aggregate available amount thereunder being less than such minimum available amount requirement.
(iv) To the extent that Xxxx makes a drawing under any Letter of Credit if, after giving effect and retains any portion of such drawn amount as cash collateral and margin to such issuancesecure the prompt and complete the payment and performance of all of the Company’s obligations hereunder and under the other Transaction Documents, the Total Utilization Company further agrees that Xxxx shall have, and hereby grants to Xxxx, a present and continuing security interest in and to, and a general first lien upon and right of Revolving Loan Commitments would exceed set off against, such cash amount and all interest and other proceeds from time to time received, receivable or otherwise distributed in respect thereof, or in exchange therefor. Notwithstanding any provisions of Applicable Law, Xxxx shall have the Revolving Loan Commitment Amount then right to sell, pledge, rehypothecate, assign, invest, use, commingle or otherwise use in effect;
(ii) its business all or any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance portion of such Standby Letter retained cash amount, free from any claim or right of Credit; provided that any nature whatsoever of the immediately preceding clause (bCompany, including any equity or right of redemption by the Company. Nothing in this Section 12.4(c) shall not prevent limit any Issuing Lender from agreeing that a Standby Letter rights of Credit will automatically be extended for one Xxxx under any other provision of this Agreement or more successive periods not to exceed one year each unless such Issuing Lender elects not to extend for any such additional period; and providedother Transaction Documents, further that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollarsincluding without limitation, under Article 18 below.
Appears in 1 contract
Samples: Supply and Offtake Agreement (Delek US Holdings, Inc.)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to During the Revolving Loan Commitment Termination DatePeriod, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject subject to the terms and conditions hereof, each Issuing Bank agrees to issue Letters of this Agreement and Credit for the account of any Borrower or any of its Restricted Subsidiaries in reliance upon the representations and warranties aggregate amount up to but not exceeding the Letter of Company herein set forthCredit Sublimit; provided, any one or more Revolving Lenders may, but (except as provided i) each Letter of Credit shall be denominated in subsection 3.1B(ii)Dollars; (ii) the stated amount of each Letter of Credit shall not be obligated to, issue less than $50,000 or such Letters of Credit in accordance with lesser amount as is acceptable to the provisions of this subsection 3.1applicable Issuing Bank; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(iiii) any Letter of Credit if, after giving effect to such issuance, in no event shall the Total Utilization Outstanding Amount of the Revolving Loan Commitments would Obligations exceed the Revolving Loan Commitment Amount Commitments then in effect;
; (iiiv) any Letter of Credit if, after giving effect to such issuance, in no event shall the Outstanding Amount of the Letter of Credit Usage would Obligations exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; and (v) in no event shall any standby Letter of Credit have an expiration date later than the earlier of (a1) five Business Days seven (7) days prior to the Revolving Loan Commitment Termination Date Date, and (b2) the date which is one (1) year from the date of issuance of such Standby standby Letter of Credit; provided that . Subject to the immediately preceding foregoing (other than clause (bv)) shall not prevent any Issuing Lender from agreeing Bank may agree that a Standby standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one (1) year each each, unless such Issuing Lender Bank elects not to extend for any such additional period; and provided, further that no Issuing Bank shall extend any such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge received written notice 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 Bank must elect whether or not to allow such extension;
; provided, further, in the event that any Lender is at such time a Defaulting Lender, unless the applicable Issuing Bank has entered into arrangements satisfactory to such Issuing Bank (ivin its sole discretion) with the Borrowers or such Defaulting Lender to eliminate such Issuing Bank’s Fronting Exposure with respect to such Lender (after giving effect to Section 2.16(a)(iv) and any Standby Cash Collateral provided by the Defaulting Lender), including by Cash Collateralizing such Defaulting Lender’s Revolving Commitment Percentage of the Outstanding Amount of the Letter of Credit issued for the purpose of supporting (a) trade payables Obligations in a manner reasonably satisfactory to Agents, such Issuing Bank shall not be obligated to issue or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) extend any Letter of Credit denominated in a currency other than Dollarshereunder.
Appears in 1 contract
Samples: Credit Agreement (Heckmann CORP)
Letters of Credit. In addition to Company requesting that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(i) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(ii), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day date that is 30 days prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that such Letters of Credit shall be issued on a sight basis only and Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000250,000,000;
(iii) any Standby Letter of Credit denominated in a currency other than Dollars; or
(iv) any Letter of Credit having an expiration date later than the earlier of (a) the date that is five Business Days prior to the Revolving Loan 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 further, that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge that an Event of Default or Potential 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. (a) Subject to the terms and conditions of set forth in this Agreement Agreement, during the period from and in reliance upon including the representations and warranties of Company herein set forth, any one or more Revolving Lenders mayEffective Date to, but not including the Letter of Credit Expiration Date, each Issuing Lender shall take such Letter of Credit Actions denominated in Dollars or any Alternative Currency as Borrower may from time to time request; provided, however, that (i) the Outstanding Revolving Obligations of each Lender shall not exceed such Lender’s Revolving Commitment at any time, (ii) the Outstanding Revolving Obligations of all Lenders plus the aggregate principal amount of all outstanding Competitive Loans shall not exceed the combined Revolving Commitments at any time, (iii) the Letter of Credit Usage shall not exceed the Letter of Credit Sublimit at any time and (iv) the Letter of Credit Usage in respect of Letters of Credit issued by each Issuing Lender shall not exceed the Letter of Credit Commitment of such Issuing Lender at any time. All Existing Letters of Credit shall be deemed to be Letters of Credit issued hereunder on the Effective Date for the account of Xxxxxxxx, and the participations therein created pursuant to the Existing Credit Agreement shall be superseded by participations created by Section 2.03(b) hereof. Subject to subsection (f) below and unless consented to by the applicable Issuing Lender and Administrative Agent, and except for any Existing Letter of Credit which expires more than 12 months after the date of its issuance or last renewal, no Letter of Credit may expire more than 12 months after the date of its issuance or last renewal; provided, however, that (x) subject to clause (y), no Letter of Credit shall expire after the Business Day which is at least five days prior to the Revolving Termination Date (as provided it may be extended) and (y) a Letter of Credit may expire up to the date that is one year after the Revolving Termination Date (as it may be extended) with the consent of the Issuing Lender in subsection 3.1B(ii)) respect thereof (which consent shall not be obligated tounreasonably withheld) so long as Borrower shall, issue such at least 15 days prior to the Revolving Termination Date (as it may be extended) (or for any Letters of Credit issued after such date, the date of issuance) deposit cash in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Dollar Amount equal to the Letter of Credit ifUsage applicable to it in a Letter of Credit Cash Collateral Account. In the event that any Lender’s Commitment terminates prior to an extended Revolving Termination Date as contemplated by Section 2.01(e), the respective participations of the other Lenders in all outstanding Letters of Credit shall be redetermined on the basis of their respective Commitments after giving effect to such issuancetermination, and the Total Utilization participation therein of the Lender whose Commitment is terminated shall terminate; provided that Borrower shall, if and to the extent necessary to permit such redetermination of participations in Letters of Credit within the limits of the Commitments which are not terminated, prepay on such date all or a portion of the outstanding Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then Loans, and such redetermination and termination of participations in effect;
(ii) outstanding Letters of Credit shall be conditioned upon their having done so. If any Letter of Credit ifUsage remains or is expected to remain outstanding on the Revolving Termination Date (as it may be extended), after giving effect Borrower shall, at least 15 days prior to such issuancethe Revolving Termination Date (as it may be extended), deposit cash in an amount equal to the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby applicable to it in a Letter of Credit having Cash Collateral Account.
(b) Borrower may irrevocably request a Letter of Credit Action in a Minimum Amount therefor (or, if such Letter of Credit Action is in respect of a Letter of Credit denominated in an expiration date Alternative Currency, a Dollar Amount which is in a Minimum Amount therefor) by delivering a Letter of Credit Application therefor to the applicable Issuing Lender, with a copy to Administrative Agent, not later than the earlier of (a) five Business Days prior to the Revolving Loan 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 Requisite Time therefor. Each Letter of Credit will automatically Action shall 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable a form acceptable to the applicable Issuing Lender in its reasonable sole discretion; . Each such request for a Letter of Credit Action shall, if Sections 4.02(b) and (c) are applicable to such Letter of Credit Action, constitute a representation and warranty by Borrower that the conditions set forth in Sections 4.02(b) and (c) are satisfied. Unless Administrative Agent notifies the applicable Issuing Lender that such Letter of Credit Action is not permitted hereunder, or the applicable Issuing Lender notifies Administrative Agent that it has determined that such Letter of Credit Action is contrary to any Laws or policies of such Issuing Lender, the applicable Issuing Lender shall effect such Letter of Credit Action. This Agreement shall control in the event of any conflict with any Letter of Credit Application. Upon the issuance of a Letter of Credit (or, with respect to the Existing Letters of Credit, on the Effective Date), each applicable Issuing Lender shall be deemed to have sold and transferred to each Lender, and each Lender shall be deemed to have purchased from each applicable Issuing Lender, a participation therein in an amount equal to such Xxxxxx’s Revolving Percentage times the Dollar Amount of such Letter of Credit. Each applicable Issuing Lender represents and warrants to each Lender that it has all necessary power and authority to sell and transfer such participation to each Lender, without breach of any Contractual Obligation to any other Person, and that such participation is free and clear of any adverse claim. Notwithstanding anything herein to the contrary, Xxxxxx Xxxxxxx Bank, N.A. as an Issuing Lender, shall only be obligated to issue standby Letters of Credit, and shall only be obligated to do so upon at least 3 Business Days’ prior written notice (or such shorter period of time as Xxxxxx Xxxxxxx Bank, N.A. shall approve in its sole discretion).
(vic) Borrower shall reimburse each Issuing Lender through Administrative Agent for any payment that such Issuing Lender makes under a Letter of Credit within one Business Day following demand by Administrative Agent or such Issuing Lender in Dollars or in the applicable Alternative Currency in which such payment was made; provided, however, that if the conditions precedent set forth in Section 4.02 can be satisfied (except for the giving of a Request for Extension of Credit), Borrower may request a Borrowing of Base Rate Loans in the Dollar Amount necessary to reimburse such Issuing Lender for such payment pursuant to Section 2.02 (without regard to the Minimum Amount requirements thereof). If Xxxxxxxx’s reimbursement of, or obligation to reimburse, any amounts in any Alternative Currency would subject Administrative Agent, the applicable Issuing Lender or any Lender to any stamp duty, ad valorem charge or similar tax that would not be payable if such reimbursement were made or required to be made in Dollars, Borrower shall pay the amount of any such tax requested by Administrative Agent, the relevant Issuing Lender or Lender. If Borrower fails to make such payment when due, then if such payment relates to a Letter of Credit denominated in an Alternative Currency, automatically and with no further action required, Xxxxxxxx’s obligation to reimburse the applicable payment by the applicable Issuing Lender shall be permanently converted into an obligation to reimburse the Dollar Amount of such payment.
(d) Upon any drawing under a currency Letter of Credit, the applicable Issuing Lender shall notify Administrative Agent and Borrower. If Borrower fails to timely make the payment required pursuant to subsection (c) above or to provide cash collateral as required in subsection (a) above, such Issuing Lender shall notify Administrative Agent of such fact and the Dollar Amount of such unreimbursed payment or required cash collateral, as applicable. Administrative Agent shall promptly notify each Lender of its Revolving Percentage of such Dollar Amount by Requisite Notice. Each Lender shall make funds in an amount equal to its Revolving Percentage of such Dollar Amount available to Administrative Agent at Administrative Agent’s Office not later than the Requisite Time therefor on the Business Day specified by Administrative Agent. Administrative Agent shall remit the funds so received to such Issuing Lender in the case of reimbursement of a Letter of Credit drawing or to Administrative Agent for deposit in a Letter of Credit Cash Collateral Account, as applicable. The obligation of each Lender to so reimburse such Issuing Lender and fund such Letter of Credit Cash Collateral Account shall be absolute and unconditional and shall not be affected by the occurrence of a Default or Event of Default or any other than Dollarsoccurrence or event; provided that such Issuing Lender shall not have a right to be so reimbursed in respect of a Letter of Credit if such Issuing Lender issued such Letter of Credit after being notified by Administrative Agent that such issuance was not permitted hereunder. Any such reimbursement shall not relieve or otherwise impair the obligation of Borrower to reimburse each Issuing Lender for the amount of any payment made by such Issuing Lender under any Letter of Credit, together with interest as provided herein, or to provide cash collateral.
Appears in 1 contract
Samples: Credit Agreement
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. 3.1 U.S. L/C COMMITMENT.
(a) Subject to the terms and conditions of this Agreement and hereof, the Issuing Lender, in reliance upon on the representations and warranties agreements of Company herein set forth, any one or more the other U.S. Revolving Lenders mayset forth in Section 3.4(a), but agrees to issue letters of credit (except "U.S. LETTERS OF CREDIT") for the account of the U.S. Borrowers on any Business Day during the Revolving Commitment Period in such form as provided in subsection 3.1B(ii)) shall not may be obligated to, issue such Letters of Credit in accordance with approved from time to time by the provisions of this subsection 3.1U.S. Issuing Lender; provided PROVIDED that Company shall not request that any Revolving Lender issue (and no Revolving the U.S. Issuing Lender shall issue):
(i) have no obligation to issue any U.S. Letter of Credit if, after giving effect to such issuance, (i) the Total Utilization of Revolving Loan Commitments U.S. L/C Obligations would exceed the Revolving Loan U.S. L/C Commitment Amount then in effect;
or (ii) any the aggregate amount of the Available U.S. Revolving Commitments would be less than zero. Each U.S. Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
shall (iiii) any Standby Letter of Credit having an expiration date be denominated in Dollars and (ii) expire no later than the earlier of (ax) five Business Days prior to the Revolving Loan Commitment Termination Date first anniversary of its date of issuance and (by) 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the U.S. Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Date, PROVIDED that any U.S. Letter of Credit or with a one-year term may provide for the renewal thereof, unless notice of termination thereof is given by the U.S. Issuing Lender prior to the expiry date thereof, for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above).
(b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Each U.S. Letter of Credit denominated in a currency other than Dollarsshall be subject to the Uniform Customs and, to the extent not inconsistent therewith, the laws of the State of New York.
(c) The U.S. Issuing Lender shall not at any time be obligated to issue any U.S. Letter of Credit hereunder if such issuance would conflict with, or cause the U.S. Issuing Lender or any U.S. L/C Participant to exceed any limits imposed by, any applicable Requirement of Law.
Appears in 1 contract
Letters of Credit. Company Borrower may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Maturity Date, that one or more Revolving Lenders Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company Borrower for the general corporate purposes of Company Borrower or a Subsidiary of CompanyBorrower. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders Issuing Lender may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company Borrower shall not request that any Revolving Issuing Lender issue (and no Revolving Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the lesser of (a) the Revolving Loan Commitment Amount then in effecteffect and (b) the Borrowing Base;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00025,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior the date which is one year after the Maturity Date; provided that to the Revolving Loan Commitment Termination Date extent any Letters of Credit remain outstanding after the Maturity Date, each such Letter of Credit shall be cash collateralized in an amount equal to 105% of the face amount thereof; 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Maturity Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion;
(v) any Letter of Credit if any Lender is at that time a Defaulting Lender, unless Issuing Lender has entered into arrangements, which may include the delivery of cash collateral, satisfactory to the Issuing Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuing Lender’s actual or potential fronting exposure (after giving effect to subsection 2.9A(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 Letters of Credit as to which the Issuing Lender has such actual or potential fronting exposure, as it may elect in its sole discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Letters of Credit. Company In addition to Borrower requesting that Lenders make Revolving Loans pursuant to subsection 2.l A(iii), Borrower may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis (including the Palo Alto Letter of Credit) for the account of Company Borrower for the general corporate purposes specified in the definition of Company or a Subsidiary Letters of CompanyCredit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided PROVIDED that Company Borrower shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the lesser of the Revolving Loan Commitment Amount Commitments then in effecteffect and the Borrowing Base;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0003,500,000; provided that for the purposes of this subsection 3.1A(ii), the Palo Alto Letter of Credit will not be included, in the calculation of the Letter of Credit Usage;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided PROVIDED that the immediately preceding clause (b) shall not prevent any each Issuing Lender from agreeing shall agree at the request of Borrower 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 providedPROVIDED, further FURTHER that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has 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 must elect whether or not to allow such extension;
(iv) any Standby the Palo Alto Letter of Credit issued for the purpose in excess of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code)$5,000,000;
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Letters of Credit. In addition to Company requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(iii), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders the Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) the Issuing Lender shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided PROVIDED that Company shall not request that any Revolving Lender issue (and no Revolving the Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the lesser of (x) the Revolving Loan Commitment Amount Commitments then in effect and (y) the Borrowing Base then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0003,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided PROVIDED that the immediately preceding clause (b) shall not prevent any the 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 the Issuing Lender elects not to extend for any such additional period; and providedPROVIDED, further FURTHER that such the Issuing Lender shall elect not to extend such Standby Letter of Credit if it has 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 the Issuing Lender must elect whether or not to allow such extension;; or
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1a) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2b) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than DollarsCredit.
Appears in 1 contract
Letters of Credit. Company In addition to Borrower requesting that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(ii), Borrower may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company Borrower for the general corporate purposes specified in the definition of Company or a Subsidiary Standby Letters of CompanyCredit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company Borrower shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00050,000,000 less the maximum amount that is or may become available for drawing under the Insurance Letter of Credit;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten days prior to the Revolving Loan 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 (but subject to clause (a)) 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, provided further that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge that an Event of Default or Potential 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “"antecedent debt” " (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars; and
(vi) any Letter of Credit that is otherwise unacceptable to the Issuing Lender in its reasonable discretion.
Appears in 1 contract
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to During the Revolving Loan Commitment Termination DatePeriod, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forthhereof, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, Issuing Bank agrees to issue such Letters of Credit at the request and for the account of Borrower in accordance with the provisions aggregate amount up to but not exceeding the Letter of this subsection 3.1Credit Sublimit; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
provided, (i) any each Letter of Credit ifshall be denominated in Dollars; (ii) [reserved]; (iii) immediately after giving effect to such issuance the Total Utilization of Revolving Commitments shall not exceed the lesser of (A) the Maximum Credit and (B) the Borrowing Base then in effect, subject to the limitation in Section 2.01(2)(v); (iv) after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, no event shall the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; (v) in no event shall any standby Letter of Credit have an expiration date later than the earlier of (a1) five 5 Business Days prior to the Revolving Loan Commitment Termination Maturity Date; provided, that a Letter of Credit may have an expiry date later than that otherwise permitted by this clause so long as the maximum available amount of such Letter of Credit is Cash Collateralized at 102% not later than the fifth Business Day prior to the Maturity Date in the manner specified in Section 2.03(8) and (b2) the date which is one year from the date of issuance of such Standby standby Letter of Credit or, in the case of any renewal or extension thereof, one year after such renewal or extension subject to clause (v)(1) above); (vi) in no event shall any commercial Letter of Credit have an expiration date later than the earlier of (1) 10 Business Days prior to the Maturity Date and (2) the date which is 180 days from the date of issuance of such commercial Letter of Credit; provided that (vii) in no event shall a commercial Letter of Credit be issued unless Issuing Bank has agreed in writing to issue commercial Letters of Credit pursuant to this Section 2.03 and such commercial Letter of Credit is otherwise acceptable to Issuing Bank, in each case in its sole discretion; (viii) in no event shall any Letter of Credit be issued if the immediately preceding clause issuance thereof would violate one or more provisions of any applicable law, rule, or regulation or one or more policies of Issuing Bank applicable to letters of credit; (bix) after giving effect to such issuance, in no event shall not prevent the Letter of Credit Usage for all Letters of Credit issued by any Issuing Lender from agreeing Bank exceed the Issuing Bank Sublimit for such Issuing Bank; and (x) each Letter of Credit shall be in form and substance reasonably satisfactory to Issuing Bank and issued in accordance with Issuing Bank’s standard operating procedures. Subject to the foregoing, Issuing Bank may agree that a Standby standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each each, unless such Issuing Lender Bank elects not to extend for any such additional period; and provided, further that Issuing Bank shall not extend any such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge received written notice from Administrative Agent, or any Lender 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used condition set forth in Section 547 of the Bankruptcy Code);
(v) 4.02 is not satisfied; provided further, if any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which Lender is five Business Days prior a Defaulting Lender, Issuing Bank shall not be required to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial issue any Letter of Credit or (b) that is otherwise unacceptable to extend the applicable Issuing Lender in its reasonable discretion; or
(vi) expiry date or increase the amount of any outstanding Letter of Credit denominated unless Issuing Bank has entered into arrangements satisfactory to it and Borrower to eliminate Issuing Bank’s risk with respect to the participation in a currency other than Dollars.Letters of Credit of the Defaulting Lender, including by Cash Collateralizing 116 US-DOCS\124480978.17139630401.7
Appears in 1 contract
Letters of Credit. Company In addition to Borrower requesting that Lenders make Loans pursuant to Section 2.1A, Borrower may request, in accordance with the provisions of this subsection Section 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Maturity Date, that one or more Revolving Lenders Issuing Lender issue Letters of Credit payable on a sight basis for the account of Company Borrower for the general corporate purposes specified in the definition of Company or a Subsidiary Standby Letters of CompanyCredit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein the Loan Parties set forthforth in the Loan Documents, any one or more Revolving Lenders mayIssuing Lender shall be obligated, but (except as provided in subsection Section 3.1B(ii)) shall not be obligated to, to issue such Letters of Credit in accordance with the provisions of this subsection Section 3.1; provided that Company Borrower shall not request that any Revolving Issuing Lender issue (and no Revolving Issuing Lender shall not issue):
(i1) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments Usage would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii2) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0002,000,000;
(iii3) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Maturity Date and (b) the date which that 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; provided, further that Issuing Lender shall deliver a written notice to Administrative Agent setting forth the last day on which Issuing Lender may give notice that it will not extend such Standby Letter of Credit (the “Notification Date” with respect to such Standby Letter of Credit) at least ten Business Days prior to such Notification Date; and provided, further that such that, unless Lenders otherwise consent, Issuing Lender shall elect give notice that it will not to extend such Standby Letter of Credit if it has 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 on such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretionNotification Date; or
(vi4) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Letters of Credit. Company In addition to Borrower requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(ii) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iii), Borrower may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Restatement Effective Date to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company Borrower for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit; provided that all such Commercial Letters of Credit shall provide for sight drawings. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company Borrower herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company Borrower shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00060,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
; provided, however, that notwithstanding clause (iva) any but subject to the other restrictions of this subsection, Borrower may request the issuance (on a date prior to five Business Days prior to the Revolving Loan Commitment Termination Date) of a Standby Letter of Credit issued for having an expiration date later than five Business Days prior to the purpose Revolving Loan Commitment Termination Date if Borrower, at the time of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as such request, makes arrangements in form and substance satisfactory to Issuing Lender thereof to cash collateralize such Letter of Credit, provided that term is used in Section 547 Issuing Lender shall be under no obligation to issue such a Letter of Credit if it shall reasonably determine that such cash collateralization arrangements could reasonably be expected to be less favorable to Issuing Lender than the Bankruptcy Code);reimbursement arrangements hereunder with respect to other Letters of Credit; or
(viv) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1X) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2Y) the date which is 180 days from the date of issuance (on a date prior to 30 days prior to the Revolving Loan Commitment Termination Date) of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
provided, however, that notwithstanding clause (viX) any but subject to the other restrictions of this subsection, Borrower may request the issuance (on a date prior to 30 days prior to the Revolving Loan Commitment Termination Date) of a Commercial Letter of Credit denominated having an expiration date later than the time set forth in clause (X) if Borrower, at the time of such request, makes arrangements in form and substance satisfactory to Issuing Lender thereof to cash collateralize such Letter of Credit, provided that Issuing Lender shall be under no obligation to issue such a currency Letter of Credit if it shall reasonably determine that such cash collateralization arrangements could reasonably be expected to be less favorable to Issuing Lender than the reimbursement arrangements hereunder with respect to other than DollarsLetters of Credit.
Appears in 1 contract
Samples: Credit Agreement (Dominos Inc)
Letters of Credit. Company may (a) Subject to all the terms and conditions hereof, satisfaction of all conditions precedent to borrowing under this Agreement and so long as no Potential Default or Event of Default is in existence, at the Company’s request, in accordance with the provisions of this subsection 3.1L/C Issuer shall issue, from at any time to time during the period from the Effective Date to but excluding the fifth Business Day prior to before the Revolving Loan Commitment Credit Termination Date, that one or more Revolving Lenders issue Letters letters of Credit payable on a sight basis credit (an “L/C” and collectively the “L/Cs”) for the account of the Company subject to availability under the Revolving Credit, and the Banks hereby agree to participate therein as more fully described in Section 1.8 hereof. Each L/C shall be issued pursuant to an application for L/C (collectively the “L/C Agreements” and individually an “L/C Agreement”) in a form that is mutually acceptable to the Company and the L/C Issuer, shall conform to the general requirements of the L/C Issuer for the general corporate purposes issuance of Company or a Subsidiary L/Cs as to form and substance, shall be in U.S. Dollars and shall be an L/C which the L/C Issuer may lawfully issue. The L/Cs shall consist of Company. Subject standby and commercial L/Cs in an aggregate face amount not to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby Letter of Credit having 30,000,000. Each L/C shall have an expiration expiry date not later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; thereof or thirty (30) days prior to the Revolving Credit Termination Date, provided that annually renewable L/Cs may be issued with a final expiry date no later than thirty (30) days prior to the immediately preceding clause Revolving Credit Termination Date. The Company agrees that if on the Revolving Credit Termination Date any L/C remains outstanding the Company shall then deliver to the Agent, without notice or demand, Cash Collateral in an amount equal to 105% of the aggregate amount of each L/C then outstanding (which shall be held by the Agent pursuant to the terms of Section 1.6(g) hereof). The amount available to be drawn under each L/C issued and outstanding pursuant hereto shall be deducted from the credit otherwise available under the Revolving Credit but shall not reduce the Revolving Credit Commitments of the Banks hereunder. In consideration of the issuance of L/Cs the Company agrees to pay the applicable L/C Issuer for the pro rata benefit of the Banks a fee (the “L/C Participation Fee”) in the amount of the rate per annum (computed on the basis of a 360 day year and actual days elapsed) equal to the Applicable Margin as in effect from time to time for Eurodollar Loans of the undrawn amount for each standby L/C issued for the account of the Company hereunder, payable quarterly in arrears on the last day of each March, June, September and December commencing June 30, 2019, and on the Revolving Credit Termination Date. The Company shall also pay the L/C Issuers a fronting fee in the amount of one-eighth of one percent (0.125%) of the face amount of each standby L/C issued hereunder, payable on the date of issuance of each such standby L/C hereunder and on the date of each extension, if any, of the expiry date of each such standby L/C and the relevant L/C Issuer’s usual and customary fees with respect to each trade L/C issued hereunder, payable upon negotiation thereof. In addition, the Company shall pay to the relevant L/C Issuer for its own account such L/C Issuer’s standard documentary and processing charges for L/Cs with respect to each L/C. Notwithstanding anything contained herein to the contrary, the L/C Issuer shall be under no obligation to issue, extend or amend any L/C if a default of any Bank’s obligations to fund under Section 1.8 exists or any Bank is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into arrangements with the Company or such Bank satisfactory to the L/C Issuer to eliminate the L/C Issuer’s risk with respect to such Bank.
(b) Upon satisfaction of all conditions precedent to the initial Loan hereunder, without any further action on the part of the Company, the Existing L/C Issuer, the Agent or any Bank, (i) each of the L/Cs (the “Existing L/Cs”) previously issued by the Existing L/C Issuer for the account of the Company under the Existing Agreement shall not prevent be deemed for all purposes of this Agreement to be an L/C issued hereunder, (ii) each application and agreement for an LC pursuant to which each Existing L/C was issued shall be deemed for all purposes of this Agreement to be an L/C Agreement, and (iii) all of the Company’s indebtedness, obligations and liabilities to the Existing L/C Issuer with respect to the Existing L/Cs shall be deemed to be Reimbursement Obligations of the Company for all purposes of this Agreement.
(c) Notwithstanding anything contained in any Issuing Lender from agreeing that a Standby Letter L/C Agreement to the contrary: (i) the Company shall pay fees in connection with each L/C as set forth in Section 1.6(a) hereof, (ii) prior to the occurrence and continuance 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 knowledge that an Event of Default, unless required by Section 2.4 hereof, the Agent will not call for the funding by the Company of any amount under an L/C issued for the Company’s account, or for any other form of additional collateral security for the Company’s obligations in connection with such L/C under the L/C Agreements, and (iii) prior to the occurrence and continuance of an Event of Default or the Revolving Credit Termination Date, unless required by Section 1.6(a) or Section 2.4 hereof, the Agent will not call for the funding by the Company of an L/C issued for its account prior to being presented with a draft drawn thereunder (or, in the event the draft is a time draft, prior to its due date). If an L/C Issuer issues any L/C with an expiration date that is automatically extended unless such L/C Issuer gives notice that the expiration date will not so extend beyond its then scheduled expiration date, such L/C Issuer will give such notice of non-renewal before the time necessary to prevent such automatic extension if before such required notice date (A) the expiration date of such L/C if so extended would be after the Revolving Credit Termination Date, (B) the Revolving Credit Commitments have been terminated, (C) an Event of Default or Potential Default has occurred and is continuing continuing, or (D) the renewal term for such L/C would exceed one year from the renewal date.
(d) The Agent shall give prompt telecopy notice to each Bank of each issuance of, or amendment to, an L/C specifying the effective date of the L/C or amendment, the amount, the beneficiary, and the expiration date of the L/C, in each case as established originally or through the relevant amendment, as applicable, the account party or parties for the L/C, each Bank’s pro rata participation in such L/C and whether the Agent has not been waived classified the L/C as a commercial, performance, or financial L/C for regulatory reporting purposes.
(e) The Banks shall, ratably in accordance with subsection 10.6their respective Commitment Percentages, indemnify the L/C Issuers (to the extent not reimbursed by the Company) at against any cost, expense (including reasonable counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from such L/C Issuer’s gross negligence or willful misconduct) that the time L/C Issuers may suffer or incur in connection with any L/C. The obligations of the Banks under this Section 1.6(e) and all other parts of this Section 1.6 shall survive termination of this Agreement and of all L/C Agreements, and all drafts or other documents presented in connection with drawings thereunder.
(f) The Company’s obligation to reimburse the Reimbursement Obligations as provided in Section 1.7 shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement and the relevant L/C Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any L/C or this Agreement, or any term or provision therein, (ii) any draft or other document presented under an L/C proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an L/C Issuer under an L/C against presentation of a draft or other document that does not strictly comply with the terms of such Issuing Lender must elect whether L/C, or not to allow such extension;
(iv) any Standby Letter other event or circumstance whatsoever, whether or not similar to any of Credit issued the foregoing, that might, but for the purpose provisions of supporting this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Company’s obligations hereunder. None of the Agent, the Banks, or the L/C Issuers shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any L/C or any payment or failure to make any payment thereunder (a) trade payables irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any L/C (b) including any Indebtedness constituting “antecedent debt” document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the L/C Issuers; provided that the foregoing shall not be construed to excuse the L/C Issuers from liability to the Company to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Company to the extent permitted by applicable law) suffered by the Company that term is used are caused by such L/C Issuer’s failure to exercise care when determining whether drafts and other documents presented under a L/C comply with the terms thereof. The parties hereto expressly agree that, in Section 547 the absence of gross negligence or willful misconduct on the part of an L/C Issuer (as finally determined by a court of competent jurisdiction), such L/C Issuer shall be deemed to have exercised care in each such determination. In furtherance of the Bankruptcy Code);foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a L/C, the relevant L/C Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such L/C.
(vg) All amounts available for drawing under any Commercial Letter or all outstanding L/Cs required under any of Credit having an expiration date Sections 1.6(a) or 2.4 hereof shall be held by the Agent in one or more separate collateral accounts (aeach such account, and the credit balances, properties, and any investments from time to time held therein, and any substitutions for such account, any certificate of deposit or other instrument evidencing any of the foregoing and all proceeds of and earnings on any of the foregoing being collectively called the “Collateral Account”) later than as security for, and for application by the earlier of Agent (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date extent available) to, the reimbursement of any payment under any L/C then or thereafter made by the L/C Issuer. The Collateral Account shall be held in the name of and (2) subject to the date exclusive dominion and control of the Agent for the benefit of the Agent, the Banks, and the L/C Issuer. If and when requested by the Company, the Agent shall invest funds held in the Collateral Account from time to time in direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America with a remaining maturity of one year or less, provided that the Agent is 180 days irrevocably authorized to sell investments held in the Collateral Account when and as required to make payments out of the Collateral Account for application to amounts due and owing from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable Company to the applicable Issuing Lender L/C Issuer, the Agent or the Banks. Subject to the terms of Sections 1.10 and 1.11, if the Company shall have made payment of all obligations referred to above required under Section 2.4, at the request of the Company the Agent shall release to the Company amounts held in its reasonable discretion; or
(vi) the Collateral Account so long as at the time of the release and after giving effect thereto no Potential Default or Event of Default exists. After all L/Cs have expired or been cancelled, at the request of the Company, the Agent shall release any Letter remaining amounts held in the Collateral Account following payment in full in cash of Credit denominated in a currency other than Dollarsall Reimbursement Obligations.
Appears in 1 contract
Letters of Credit. In addition to Company requesting that Lenders make Loans pursuant to subsection 2.1A, Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day 30th day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the lesser of the Revolving Loan Commitment Amount then in effect or the Borrowing Base then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0005,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days 30 days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Letters of Credit. Company In addition to Borrowers requesting that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(i) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(ii), Borrowers may request, on a joint and several basis, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day 30th day prior to the Revolving Loan Commitment Termination Date, that Administrative Agent assist Borrowers in obtaining one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company Borrowers for the general corporate purposes specified in the definitions of Company or a Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Commercial Letters of Credit in accordance with the provisions and Standby Letters of this subsection 3.1; provided that Company Credit. Borrowers shall not request that any Revolving Lender issue the assistance of Administrative Agent in obtaining the issuance of (and no Revolving Lender Administrative Agent shall issuenot enter into any Letter of Credit Guaranty in connection with):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Borrowing Base then in effect;
(iii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00035,000,000;
(iiiiv) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten days prior to (i) if the Convertible Subordinated Indebtedness has not been fully refinanced or converted into shares of Holdings common stock, in each case on terms and conditions satisfactory to Requisite Lenders in their sole discretion, December 31, 2002 or (ii) if the Convertible Subordinated Indebtedness has been so refinanced, the Revolving Loan 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 prevent, with the consent of Administrative Agent, the issuance of a Standby Letter of Credit that will automatically be extended for one or more successive periods not to exceed one year each unless such Issuing Lender elects Administrative Agent does not consent to extend the extension for any such additional period; and provided, further that such Issuing Lender Administrative Agent shall elect not consent to extend the extension of any such Standby Letter of Credit if it has 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 Administrative Agent must elect whether or not to allow such extension;
(ivv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “"antecedent debt” " (as that term is used in Section 547 of the Bankruptcy Code);
(vvi) any Commercial Letter of Credit having an expiration date (a) later than the earlier of thirty days prior to (1) (i) if the date which is five Business Days prior Convertible Subordinated Indebtedness has not been fully refinanced or converted into shares of Holdings common stock, in each case on terms and conditions satisfactory to Requisite Lenders in their sole discretion, December 31, 2002 or (ii) if the Convertible Subordinated Indebtedness has been so refinanced, the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender Administrative Agent in its reasonable discretion; or
(vivii) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Samples: Credit Agreement (Arris Group Inc)
Letters of Credit. In addition to Company requesting that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(iv), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day date that is 30 days prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company or for the general corporate purposes account of Company or a any Subsidiary of Company. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that such Letters of Credit shall be issued on a sight basis only and Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, (i) the aggregate Letter of Credit Usage would exceed $50,000,000250,000,000, (ii) the Letter of Credit Usage with respect to Citibank would exceed $125,000,000 or (iii) the Letter of Credit Usage with respect to Xxxxx Fargo would exceed $125,000,000;
(iii) any Standby Letter of Credit denominated in a currency other than Dollars; or
(iv) any Letter of Credit having an expiration date later than the earlier of (a) the date that is five Business Days prior to the Revolving Loan 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 further, that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has knowledge that an Event of Default or Potential 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Letters of Credit. In addition to Company requesting that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(ii) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iii), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Closing Date to but excluding the fifth Business Day 30th day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Standby Letters of CompanyCredit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,0003,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days ten days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars; or
(v) any Letter of Credit without presentation of sight drafts.
Appears in 1 contract
Samples: Credit Agreement (Blackbaud Inc)
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from From time to time during the period on any Business Day from the Effective Closing Date to but excluding through the earlier of the Revolving Credit Commitment Termination Date and the fifth Business Day prior to the date specified in clause (a) of the definition of “Revolving Loan Credit Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject ,” subject to the terms and conditions hereof, each Issuing Bank agrees to Issue, in accordance with such Issuing Bank’s usual and customary business practices, Letters of this Agreement Credit for the account of the Borrower in the aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided that the Revolving Credit Exposure does not exceed the Revolving Credit Limit; and provided, further, that (i) each Letter of Credit will be denominated in reliance upon the representations and warranties of Company herein set forth, any Dollars or in one or more Revolving Lenders may, but Available Foreign Currencies; (except as provided in subsection 3.1B(ii)ii) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, immediately after giving effect to such issuanceIssuance, in no event will the Revolving Credit Exposure of any Revolving Credit Lender exceed the Revolving Credit Commitment of such Lender; (iii) after giving effect to such Issuance, in no event will the Total Utilization of Revolving Loan Credit Commitments would exceed the Revolving Loan Commitment Amount Credit Limit then in effect;
; (iiiv) any Letter of Credit if, after giving effect to such issuanceIssuance, in no event will the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; and (v) in no event will any Letter of Credit have an expiration date that is not a Business Day or is later than the earlier of (a1) five the fifth Business Days Day prior to the date specified in clause (a) of the definition of “Revolving Loan Credit Commitment Termination Date Date” and (b2) the date which is one year from the date of issuance Issuance of such Standby standby Letter of Credit; provided that Credit or such later date as is acceptable to such applicable Issuing Bank, in each case except to the immediately preceding clause (b) shall not prevent any extent cash collateralized or backstopped pursuant to arrangements reasonably acceptable to the Issuing Lender from agreeing Bank. Subject to the foregoing, each Issuing Bank may agree that a Standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each (and in any event not to exceed the period prescribed in clause (v)(1) above), unless such Issuing Lender Bank elects not to extend for any such additional period; and provided, further provided that such Issuing Lender shall elect Bank will not to extend any such Standby Letter of Credit if it has knowledge received written notice 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 Bank must elect whether or not to allow such extension;
; provided, further, that no Issuing Bank will Issue any Letter of Credit if (ivA) any Standby fee due in connection with, and on or prior to, the Issuance of such Letter of Credit has not been paid, (B) such Letter of Credit is requested to be Issued in a form that is not acceptable to such Issuing Bank or (C) such Issuing Bank will not have received, each in form and substance reasonably acceptable to it and duly executed by the Borrower, the documents that such Issuing Bank generally uses in the ordinary course of business for the Issuance of letters of credit of the type of such Letter of Credit (collectively, the “L/C Reimbursement Agreement”); provided, further, that so long as any Lender is a Defaulting Lender, such Issuing Bank will not be required to Issue any Letter of Credit unless such Issuing Bank has entered into arrangements satisfactory to it and the Borrower to eliminate such Issuing Bank’s risk with respect to the participation in Letters of Credit of the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage, and participating interests in any such newly issued or increased Letter of Credit will be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22 (and Defaulting Lenders will not participate therein). No Issuing Bank shall be under any obligation to issue Letters of Credit if the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally. As of the Closing Date, each of the Existing Letters of Credit shall constitute, for all purposes of this Agreement and the other Credit Documents, a Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollarsoutstanding hereunder.
Appears in 1 contract
Letters of Credit. Company In addition to Borrowers requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(i)(a) and that Swing Line Lender makes 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 Effective Date to but excluding the date which is (x) the fifth Business Day prior to the Revolving Loan Commitment Termination DateDate (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 Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company such Borrower for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein Borrowers set forthforth herein, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided PROVIDED that Company Borrowers shall not request that any Revolving Lender Lenders issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Commitments for all Borrowers would exceed the Maximum Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount for all Borrowers then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, (x) the Letter of Credit Usage of any Borrower would exceed the Letters of Credit Suballocation for such Borrower then in effect, and (y) the Letter of Credit Usage for all Borrowers would exceed $50,000,000175,000,000;
(iii) any Letter of Credit if, after giving effect to such issuance, the aggregate stated amount of all Letters of Credit supporting Customer Financing Note Guaranties would exceed $20,000,000 at any time;
(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 Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided 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 PROVIDED FURTHER that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);; or
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1X) the date which is five thirty Business Days prior to the Revolving Loan Commitment Termination Date and (2Y) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Goss Graphic Systems Inc)
Letters of Credit. In addition to Company requesting that Lenders ----------------- make Tranche A Term Loans pursuant to subsection 2.1A(i), Existing Tranche B Term Loans pursuant to subsection 2.1A(ii), Additional Tranche B Term Loans pursuant to subsection 2.1A(iii), Revolving Loans pursuant to subsection 2.1A(iv), and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(v), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date July 1, 1998 to but excluding the fifth Business Day prior to the Revolving Loan Commitment Termination Date, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes specified in the definitions of Company or a Subsidiary Commercial Letters of CompanyCredit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that -------- any Revolving Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $50,000,00015,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan 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 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 must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or
(vi) any Letter of Credit denominated in a currency other than Dollars.--------
Appears in 1 contract
Letters of Credit. Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to During the Revolving Loan Commitment Termination DatePeriod, that one or more Revolving Lenders issue Letters of Credit payable on a sight basis for the account of Company for the general corporate purposes of Company or a Subsidiary of Company. Subject and otherwise subject to the terms and conditions hereof, Issuing Bank agrees to issue Letters of this Agreement and Credit for the account of Borrower in reliance upon the representations and warranties aggregate amount up to but not exceeding the Letter of Company herein set forthCredit Sublimit; provided, any one or more Revolving Lenders may, but (except as provided i) each Letter of Credit shall be denominated in subsection 3.1B(ii)Dollars; (ii) the stated amount of each Letter of Credit shall not be obligated to, issue less than $50,000 or such Letters of Credit in accordance with the provisions of this subsection 3.1lesser amount as is acceptable to Issuing Bank; provided that Company shall not request that any Revolving Lender issue (and no Revolving Lender shall issue):
(iiii) any Letter of Credit if, after giving effect to such issuance, in no event shall the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitment Amount Commitments then in effect;
; (iiiv) any Letter of Credit if, after giving effect to such issuance, in no event shall the Letter of Credit Usage would exceed $50,000,000;
(iii) any Standby the Letter of Credit having Sublimit then in effect; (v) in no event shall any standby Letter of Credit have an expiration date later than the earlier of (a1) five Business Days prior to the Revolving Loan Commitment Termination Date and (b2) the date which is one year from the date of issuance of such Standby standby Letter of Credit; provided that the immediately preceding clause and (bvi) in no event shall not prevent any Issuing Lender from agreeing that a Standby commercial 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 knowledge that an Event of Default has occurred and is continuing (and has not been waived in accordance with subsection 10.6x) at the time such Issuing Lender must elect whether or not to allow such extension;
(iv) any Standby Letter of Credit issued for the purpose of supporting (a) trade payables or (b) any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of the Bankruptcy Code);
(v) any Commercial Letter of Credit having have an expiration date (a) later than the earlier of (1) the date which is five Business Days prior to the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such Commercial commercial Letter of Credit or (b) that be issued if such commercial Letter of Credit is otherwise unacceptable to the applicable Issuing Lender Bank in its reasonable discretion. Subject to the foregoing, Issuing Bank may agree that a standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each, unless Issuing Bank elects not to extend for any such additional period; or
(vi) provided, Issuing Bank shall not extend any such Letter of Credit if it has received written notice that an Event of Default has occurred and is continuing at the time Issuing Bank must elect to allow such extension; provided, further, in the event a Funding Default exists, Issuing Bank shall not be required to issue any Letter of Credit denominated unless Issuing Bank has entered into arrangements satisfactory to it and Borrower to eliminate Issuing Bank’s risk with respect to the participation in a currency other than DollarsLetters of Credit of the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Medical Systems Holdings Inc)
