Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary. (b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1. (c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment. (d) [Reserved]. (e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it; (ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally; (iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit; (iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency; (v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency; (vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or (vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender. (f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof. (g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 18 contracts
Samples: Joinder Agreement (First Data Corp), Joinder Agreement (First Data Corp), Joinder Agreement (First Data Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, the Borrower, at any time and from time to time on or after the Original Closing Date and prior to the L/C Maturity Date, the may request that a Letter of Credit Issuer agreesissue, in reliance upon for the agreements account of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted SubsidiariesBorrower, a standby letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the such Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each ) which is participated out by such Letter of Credit Issuer pursuant to Section 3.3 (each such letter of credit, a “Letter of Credit”). Notwithstanding the foregoing, the letters of credit identified on Schedule VI (the “Existing L/Cs”) shall be deemed to be a “Letter of Credit” issued on the Closing Date for all purposes of this Agreement and (i) the account stated amount of a Restricted Subsidiarythe Existing L/Cs and the Unpaid Drawings of the Existing L/Cs shall be included in the calculation of Letter of Credit Outstanding, (ii) the provisions of this Section 3.1 and Sections 4.1(a), (b) and (c) shall apply to the Existing L/Cs and (iii) the Borrower and each of the Lenders hereby expressly acknowledge their respective obligations hereunder with respect to the Existing L/Cs.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued by any Letter of Credit Issuer the Stated Amount of which, which (A) when added to the Letters sum of (x) the Letter of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; time and (iiy) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount principal of the Lenders’ all Revolving Credit Exposures at the time of the issuance thereof to Loans then outstanding would exceed the Total Revolving Credit Commitment then in effect; , (iiiB) no when added to the Letter of Credit in an Alternative Currency shall be Outstanding at such time would exceed $50,000,000 or (C) when added to the Letter of Credit Outstanding with respect to Letters of Credit issued the Stated Amount by such Letter of which would cause the Aggregate Multicurrency Exposures at the time Credit Issuer exceeds such Letter of the issuance thereof to exceed the Multicurrency Sublimit then in effectCredit Issuer’s Letter of Credit Commitment; (ivii) each Letter of Credit shall have an expiration expiry date occurring no later than one year after the date of issuance thereof, unless otherwise thereof (it being understood that any Letter of Credit may contain customary automatic renewal provisions agreed upon by the Administrative Agent Borrower and the applicable Letter of Credit IssuerIssuer pursuant to which the expiration date of such Letter of Credit shall automatically be extended for a period of 12 months, subject to a right on the part of such Letter of Credit Issuer to prevent any such renewal from occurring by giving notice to the beneficiary in advance of such renewal); provided that in no event shall such expiration expiry date occur later than the L/C Maturity Date; (viii) each Letter of Credit shall be denominated in Dollars or an Alternative Currencyand shall provide for drawings thereunder to be made in Dollars; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viiiv) no Letter of Credit shall be issued by a any Letter of Credit Issuer after it has received a written notice from the Borrower or any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders Lender stating that a Default or Event of Default has occurred and is continuing until such time as the each Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice (provided that in the case of any such notice delivered by the Borrower, the Administrative Agent has not objected to or contested such rescission) or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
12.1 and (cv) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the no Letter of Credit shall be issued by any Letter of Credit Issuer (which if the Administrative Agent shall promptly notify Stated Amount of such Letter of Credit, when added to the applicable Lenders)sum of the aggregate Stated Amount of all outstanding Letters of Credit issued by such Letter of Credit Issuer and the aggregate amount of all Unpaid Drawings in respect of all Letters of Credit issued by such Letter of Credit Issuer, the Borrower shall have the right, on any day, permanently to terminate or reduce would exceed the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of Issuer. Notwithstanding anything herein to the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuercontrary, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits any obligation hereunder to issue, and immunities (A) provided to the Administrative Agent in Section 13 with respect to shall not issue, any acts taken or omissions suffered by the Letter of Credit Issuer the proceeds of which would be made available to any Person (i) to fund any activity or business of or with any Sanctioned Person, or in connection with Letters any country or territory that, at the time of Credit issued such funding, is the subject of any Sanctions or (ii) in any manner that would result in a violation of any Sanctions by it or proposed any party to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuerthis Agreement.
Appears in 8 contracts
Samples: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)
Letters of Credit. (a) Subject During the Revolving Commitment Period, subject to and upon the terms and conditions herein set forthhereof, at any time and from time Issuing Bank agrees to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter issue Letters of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoingBorrower; provided, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars Dollars; (ii) the stated amount of each Letter of Credit shall not be less than $250,000 or such lesser amount as is acceptable to Issuing Bank; (iii) after giving effect to such issuance, in no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect; (iv) after giving effect to such issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit then in effect; (v) in no event shall any standby Letter of Credit have an Alternative Currencyexpiration date later than the earlier of (1) the Revolving Commitment Termination Date and (2) the date which is one year from the date of issuance of such standby Letter of Credit; (vi) in no event shall any Letter of Credit shall be issued if it would be illegal under any applicable law for have an expiration date later than the beneficiary earlier of (1) the Revolving Commitment Termination Date and (2) the date which is one year from the date of issuance of such commercial Letter of Credit to have a Letter of Credit issued in its favorCredit; and (vii) no Letter of Credit Issuing Bank shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any no obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) if the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer Issuing Bank applicable to letters of credit generally;
(iii) except as otherwise agreed by generally and not solely to letters of credit issuable to Borrower. Subject to the Administrative Agent and the foregoing, Issuing Bank may agree that a standby Letter of Credit Issuerwill 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, and so notifies the beneficiary thereof 30 days in advance that such standby Letter of Credit will not be so extended; provided that 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 in an initial Stated Amount less than $100,000 or continuing at the Dollar Equivalent thereoftime Issuing Bank must elect to allow such extension; provided, in the case of further, that if any Lender is a commercial Letter of CreditDefaulting Lender, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Issuing Bank shall not be required to issue any Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer unless Issuing Bank has entered into arrangements reasonably satisfactory arrangements with the to it and Borrower or such Revolving Credit Lender to eliminate the Letter of Credit IssuerIssuing Bank’s risk with respect to such Revolving Credit Lender.
(f) The Letter the participation in Letters of Credit Issuer shall not amend any Letter of Credit if the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereofUsage.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 6 contracts
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C date that is 30 days prior to the Revolving Credit Maturity Date, the Borrower may request that the Letter of Credit Issuer agrees, in reliance upon issue for the agreements account of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct Borrower (or indirect benefit of, any Restricted Subsidiary of the Borrower so long as the Borrower is a joint and the Restricted Subsidiaries, a several co-applicant with respect thereto) standby letter of credit or letters of credit denominated in Dollars (the “Letters of Credit” and each, each a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer Issuer, in its reasonable discretion; provided that the Borrower . The Borrower’s reimbursement obligations in respect of each Existing Letter of Credit, and each L/C Participant’s participation obligations in connection therewith, shall be a co-applicant, and jointly and severally liable with respect to, each Letter governed by the terms of Credit issued for the account of a Restricted Subsidiarythis Agreement.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the such time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, ; provided that in no event shall such expiration date occur later than the L/C Maturity Date; Date (vexcept to the extent provided in Section 2.18(d), Section 2.19(d) each or Section 3.2(c)), unless the Borrower agrees, at the time of such request, to Cash Collateralize such Letter of Credit on the Business Day prior to the L/C Maturity Date on terms reasonably acceptable to the Letter of Credit Issuer; provided that the Borrower’s failure to so Cash Collateralize such Letter of Credit on the Business Day prior to the L/C Maturity Date shall be denominated in Dollars or constitute an Alternative CurrencyEvent of Default; (viiv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viiv) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from the Borrower or any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1; and (vi) the Letter of Credit Issuer shall be under no obligation to issue any Letter of Credit if any Lender is at that time a Defaulting Lender, if after giving effect to Section 2.15(a)(iii), any Defaulting Lender Fronting Exposure remains outstanding, unless such Letter of Credit Issuer has entered into arrangements, including the delivery of Cash Collateral, reasonably satisfactory to such Letter of Credit Issuer, with the Borrower or such Lender to eliminate such Letter of Credit Issuer’s Defaulting Lender Fronting Exposure arising from the Letter of Credit then proposed to be issued and such Letter of Credit and all other Letter of Credit Exposure as to which such the Letter of Credit Issuer has Defaulting Lender Fronting Exposure.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or permanently reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 5 contracts
Samples: Credit Agreement (WideOpenWest Finance, LLC), Credit Agreement (WideOpenWest Finance, LLC), Credit Agreement (WideOpenWest Finance, LLC)
Letters of Credit. (a) Subject During the Revolving Commitment Period, subject to and upon the terms and conditions herein set forthhereof, at any time and from time Issuing Bank agrees to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter issue Letters of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit ofaccount of Borrower; provided, (i) the Borrower and the Restricted Subsidiaries, a letter stated amount of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for shall not be less than $100,000 (or the account of a Restricted Subsidiary.
(bEquivalent Amount thereof in any alternative currency) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added or such lesser amount as is acceptable to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effectIssuing Bank; (ii) subject after giving effect to clause (f) belowsuch issuance, in no Letter event shall the Total Utilization of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to Commitments exceed the Total Revolving Credit Commitment Commitments then in effect; (iii) after giving effect to such issuance, in no event shall the Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to Usage exceed the Multicurrency Letter of Credit Sublimit then in effect; (iv) each in no event shall any standby Letter of Credit shall have an expiration date occurring no later than one year after the earlier of (1) the Revolving Commitment Termination Date and (2) the date which is 30 months from the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the of such standby Letter of Credit Issuer, provided that Credit; (v) in no event shall such any Letter of Credit have an expiration date occur later than the L/C Maturity Date; earlier of (v1) each the Revolving Commitment Termination Date and (2) the date which is 30 months from the date of issuance of such commercial Letter of Credit shall be denominated in Dollars or an Alternative CurrencyCredit; and (vi) no Letter of Credit Issuing Bank shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) if the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer Issuing Bank applicable to letters of credit generally;
(iii) except as otherwise agreed by generally and not solely to letters of credit issuable to Borrower. Subject to the Administrative Agent and the foregoing, Issuing Bank may agree that a standby Letter of Credit Issuerwill 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, and so notifies the beneficiary thereof 30 days in advance that such standby Letter of Credit will not be so extended; provided that 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 in an initial Stated Amount less than $100,000 or continuing at the Dollar Equivalent thereoftime Issuing Bank must elect to allow such extension; provided, in the case of further, that if any Lender is a commercial Letter of CreditDefaulting Lender, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Issuing Bank shall not be required to issue any Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer unless Issuing Bank has entered into arrangements reasonably satisfactory arrangements with the to it and Borrower or such Revolving Credit Lender to eliminate the Letter of Credit IssuerIssuing Bank’s risk with respect to such Revolving Credit Lender.
(f) The Letter the participation in Letters of Credit Issuer shall not amend any Letter of Credit if the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereofUsage.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 5 contracts
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, (i) the Borrower, may request that the US Letter of Credit Issuer agrees, in reliance upon issue for the agreements account of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a standby letter of credit or letters of credit in Dollars (the “US Letters of Credit”) and (ii) the Canadian Borrower may request that the Canadian Letter of Credit Issuer issue for the account of the Canadian Borrower a standby letter of credit or letters of credit in Canadian Dollars (the “Canadian Letters of Credit” and with the US Letters of Credit, the “Letters of Credit” and each, each a “Letter of Credit”) in such form as may be approved by the US Letter of Credit Issuer or the Canadian Letter of Credit Issuer, as the case may be, in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no US Letter of Credit shall be issued the Stated Amount of which, when added to the Letters US Letter of Credit Outstanding at such time, would exceed the US Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no US Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Lender’s US Revolving Credit Exposures at the such time of the issuance thereof to exceed the Total US Revolving Credit Commitment then in effect; (iii) no Canadian Letter of Credit shall be issued the Stated Amount of which when added to Canadian Letter of Credit Outstanding would exceed the Canadian Letter of Credit Commitment then in an Alternative Currency effect, (iv) no Canadian Letter of Credit shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time aggregate amount of the issuance thereof Canadian Lender’s Revolving Credit Exposure at such time to exceed the Multicurrency Sublimit then in effect; Canadian Revolving Credit Commitment, (ivv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent or the Canadian Administrative Agent, as applicable, and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (vvi) each US Letter of Credit shall be denominated in Dollars; (vii) each Canadian Letter of Credit shall be denominated in US Dollars or an Alternative Currency; Canadian Dollars, (viviii) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viiix) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party the Borrower or the Administrative Agent Canadian Borrower or the Required Revolving Credit Lenders any Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.114.1; and (x) any Letter of Credit issued for the account of the Canadian Borrower shall be made by a Canadian Lender described in clause (a) of that definition or a permitted assigned of such Canadian Lender that is a Canadian Resident. Notwithstanding anything herein to the contrary, the issuance of US Letters of Credit for the account of the Borrower shall be deemed a utilization of the US Revolving Credit Commitments allocated to the Borrower, and the issuance of the Canadian Letters of Credit for the account of the Canadian Borrower shall be deemed a utilization of the Canadian Revolving Credit Commitments.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the US Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the US Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters US Letter of Credit Outstanding shall not exceed the US Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 5 contracts
Samples: Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp), Credit Agreement (Sealy Mattress CORP)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, the Borrower, at any time and from time to time on or after the Original Closing Date and prior to the L/C Maturity Date, the may request that a Letter of Credit Issuer agreesissue, in reliance upon for the agreements account of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted SubsidiariesBorrower, a standby letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the such Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each ) which is participated out by such Letter of Credit Issuer pursuant to Section 3.3 (each such letter of credit, a “Letter of Credit”). Notwithstanding the foregoing, the letters of credit identified on Schedule VI (the “Existing L/Cs”) shall be deemed to be a “Letter of Credit” issued on the Closing Date for all purposes of this Agreement and (i) the account stated amount of a Restricted Subsidiarythe Existing L/Cs and the Unpaid Drawings of the Existing L/Cs shall be included in the calculation of Letter of Credit Outstanding, (ii) the provisions of this Section 3.1 and Sections 4.1(a), (b) and (c) shall apply to the Existing L/Cs and (iii) the Borrower and each of the Lenders hereby expressly acknowledge their respective obligations hereunder with respect to the Existing L/Cs.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued by any Letter of Credit Issuer the Stated Amount of which, which (A) when added to the Letters sum of (x) the Letter of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; time and (iiy) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount principal of the Lenders’ all Revolving Credit Exposures at the time of the issuance thereof to Loans and Swingline Loans then outstanding would exceed the Total Revolving Credit Commitment then in effect; , (iiiB) no when added to the Letter of Credit in an Alternative Currency shall be Outstanding at such time would exceed $50,000,000 or (C) when added to the Letter of Credit Outstanding with respect to Letters of Credit issued the Stated Amount by such Letter of which would cause the Aggregate Multicurrency Exposures at the time Credit Issuer exceeds such Letter of the issuance thereof to exceed the Multicurrency Sublimit then in effectCredit Issuer’s Letter of Credit Commitment; (ivii) each Letter of Credit shall have an expiration expiry date occurring no later than one year after the date of issuance thereof, unless otherwise thereof (it being understood that any Letter of Credit may contain customary automatic renewal provisions agreed upon by the Administrative Agent Borrower and the applicable Letter of Credit IssuerIssuer pursuant to which the expiration date of such Letter of Credit shall automatically be extended for a period of 12 months, subject to a right on the part of such Letter of Credit Issuer to prevent any such renewal from occurring by giving notice to the beneficiary in advance of such renewal); provided that in no event shall such expiration expiry date occur later than the L/C Maturity Date; (viii) each Letter of Credit shall be denominated in Dollars or an Alternative Currencyand shall provide for drawings thereunder to be made in Dollars; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viiiv) no Letter of Credit shall be issued by a any Letter of Credit Issuer after it has received a written notice from the Borrower or any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders Lender stating that a Default or Event of Default has occurred and is continuing until such time as the each Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice (provided that in the case of any such notice delivered by the Borrower, the Administrative Agent has not objected to or contested such rescission) or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
12.1 and (cv) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the no Letter of Credit shall be issued by any Letter of Credit Issuer (which if the Administrative Agent shall promptly notify Stated Amount of such Letter of Credit, when added to the applicable Lenders)sum of the aggregate Stated Amount of all outstanding Letters of Credit issued by such Letter of Credit Issuer and the aggregate amount of all Unpaid Drawings in respect of all Letters of Credit issued by such Letter of Credit Issuer, the Borrower shall have the right, on any day, permanently to terminate or reduce would exceed the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 4 contracts
Samples: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)
Letters of Credit. (a) Subject to Each Letter of Credit delivered under Section 6.1(a) hereof shall be additional security for the payment of the Debt. Upon the occurrence and upon during the terms and conditions herein set forthcontinuation of an Event of Default, Lender shall have the right, at its option, to draw on any time Letter of Credit and from time to time after the Original Closing Date and prior apply all or any part thereof to the L/C payment of the items for which such Letter of Credit was established or to apply such Letter of Credit to payment of the Debt in such order, proportion or priority as Lender may determine. On the Maturity Date, if the Debt is not paid in full, any such Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by applied to reduce the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted SubsidiaryDebt.
(b) Notwithstanding In addition to any other right Lender may have to draw upon a Letter of Credit pursuant to the foregoingspecific terms and conditions of this Agreement, Lender shall have the additional rights to draw in full on any Letter of Credit: (i) no if Lender has received a notice from the issuing bank that such Letter of Credit shall will not be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the renewed and either (y) a substitute Letter of Credit Commitment then or (z) cash in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit is not provided at least ten (10) Business Days prior to have a the date on which the outstanding Letter of Credit issued in its favoris scheduled to expire; and (viiii) no Letter upon receipt of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request bank that the Letter of Credit Issuer refrain from, will be terminated (except if the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance termination of such Letter of Credit would violate one is permitted pursuant to the terms and conditions of this Agreement or more policies a substitute Letter of Credit is provided); or (iii) if Lender has received notice that the bank issuing the Letter of Credit shall cease to meet the long-term unsecured debt rating set forth in the definition of “Letter of Credit” in Section 1.1 hereof, and Borrower has failed to deliver to Lender either (y) a substitute Letter of Credit or (z) cash in the amount of the Letter of Credit. Notwithstanding anything to the contrary contained herein, Lender shall not be obligated to draw down on any Letter of Credit Issuer applicable to letters upon the happening of credit generally;
an event specified in clause (i), (ii) or (iii) except as otherwise agreed above and shall not be liable for any losses sustained by Borrower due to the Administrative Agent and insolvency of the bank issuing the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or if Lender has not drawn the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, and in the case event of a standby Letter the insolvency of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the bank issuing the Letter of Credit Issuer does not as of or if the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, bank issuing the Letter of Credit Issuer has entered into satisfactory arrangements with ceases to meet the long-term unsecured debt rating described above, Borrower or such Revolving Credit shall promptly provide to Lender to eliminate the either (y) a substitute Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (Bz) cash in the beneficiary amount of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 4 contracts
Samples: Loan Agreement (Meristar Hospitality Corp), Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Facility Maturity Date, the each Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct or indirect benefit of, account of the Borrower (or, so long as the Borrower is the primary obligor and a signatory to the Letter of Credit Request, for the account of any Restricted Subsidiaries, a letter of credit or Subsidiary (other than the Borrower)) letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) ), which Letters of Credit shall not exceed any Letter of Credit Issuer’s Letter of Credit Commitment and in the aggregate shall not exceed the L/C Sublimit, in such form as may be approved by the each Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding L/C Obligations at such time, would exceed the Letter of Credit Commitment then in effecteffect (or with respect to any Letter of Credit Issuer, exceed such Letter of Credit Issuer’s Letter of Credit Commitment; provided that if the Borrower determines that, in connection with any actual or anticipated L/C Borrowing, less than the full amount of the L/C Sublimit would be available to the Borrower as a result of the application of this clause (i), then the Letter of Credit Commitments of each Letter of Credit Issuer shall be reallocated as elected by the Borrower in consultation with each Letter of Credit Issuer and with the consent of any such Letter of Credit Issuer which has its Letter of Credit Commitment increased as a result of such reallocation (and the Borrower and the Letter of Credit Issuers agree to take such actions as among themselves to accommodate any such reallocation), which reallocation shall be effective once acknowledged by the Administrative Agent); (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerthereof (except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, such Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized or backstopped (in the case of a backstop only, on terms reasonably satisfactory to such Letter of Credit Issuer), the Revolving Credit Lenders; (viv) each the Letter of Credit shall be denominated in Dollars or an Alternative Currency; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a any Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the such Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one two Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the each Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding L/C Obligations shall not exceed the Letter of Credit Commitment (or with respect to a Letter of Credit Issuer, the L/C Obligations with respect to Letters of Credit issued by such Letter of Credit Issuer shall not exceed such Letter of Credit Issuer’s Letter of Credit Commitment).
(d) [Reserved].
(e) The No Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the any Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the such Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the such Letter of Credit Issuer shall prohibit, or request that the such Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the such Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which the such Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the such Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the such Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the such Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the any Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereofof $50,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereofof $10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an any other Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower have entered into arrangements reasonably satisfactory to such Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the such Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderLender or such risk has been reallocated in accordance with Section 2.16.
(f) The No Letter of Credit Issuer shall not amend increase the Stated Amount of any Letter of Credit if the such Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The No Letter of Credit Issuer shall be under no any obligation to amend any Letter of Credit if (A) the such Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Any Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the such Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the any Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the any Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the any Letter of Credit Issuer.
Appears in 4 contracts
Samples: Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Borrower may request that the Letter of Credit Issuer agrees, in reliance upon issue for the agreements account of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, (i) a standby letter of credit or letters of credit in Dollars or Euros, (ii) a sight trade letter of credit or letters of credit in Dollars or Euros or (iii) for the account of the Borrower and for the benefit of any creditor of the Borrower or its Subsidiaries located outside the United States, a bank guarantee or bank guarantees (collectively, the “Letters of Credit” and each, a “Letter of Credit”) ), in each case in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Lender’s Revolving Credit Exposures at the such time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the applicable Letter of Credit Issuer, ; provided that in no event shall such expiration date occur later than the L/C Maturity Date; (viv) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favorEuros; and (viiv) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from the Borrower or any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.114.1. Notwithstanding anything herein to the contrary, the issuance of Letters of Credit for the account of the Borrower shall be deemed a utilization of the Revolving Credit Commitments allocated to the Borrower.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved]The parties hereto agree that, subject to the satisfaction of the conditions precedent set forth in Section 6, the Existing Letters of Credit shall be deemed Letters of Credit for all purposes under this Agreement, without any further action by the Borrower.
(e) The Notwithstanding anything to the contrary in this Section 3.1, a Letter of Credit Issuer shall not be under any no obligation to issue any Letter of Credit if:
(i) any Lender with a Revolving Credit Commitment is a Defaulting Lender at such time, unless such Letter of Credit Issuer has entered into arrangement reasonably satisfactory to it and the Borrower to eliminate such Letter of Credit Issuer’s risk with respect to the participation in Letters of Credit by such Defaulting Lender (which may include, without limitation, Cash Collateralizing such Defaulting Lender’s Revolving Credit Commitment Percentage of the Letters of Credit Outstanding);
(ii) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;; or
(iiiii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 4 contracts
Samples: Amendment No. 6 (Intelsat S.A.), Amendment No. 3 and Joinder Agreement (Intelsat S.A.), Amendment No. 2 and Joinder Agreement (Intelsat S.A.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer each Issuing Bank, severally, and not jointly, agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, of the Borrower and for the direct or indirect benefit of, of the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form and with such Issuer Documents as may be approved by the Letter of Credit Issuer applicable Issuing Bank in its reasonable discretion; provided that the Borrower shall be a co-applicantapplicant of, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; , (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the all Lenders’ Revolving Credit Total Exposures at the such time of the issuance thereof to exceed the Total Revolving Credit Commitment Loan Limit then in effect; , (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereofor such longer period of time as may be agreed by the applicable Issuing Bank, unless otherwise agreed upon by the Administrative Agent and the applicable Issuing Bank or as provided under Section 3.2(b); provided that any Letter of Credit Issuermay provide for automatic renewal thereof for additional periods of up to 12 months or such longer period of time as may be agreed upon by the applicable Issuing Bank, provided subject to the provisions of Section 3.2(b); provided, further, that in no event shall such expiration date occur later than the L/C Maturity Date; Date unless arrangements which are reasonably satisfactory to the applicable Issuing Bank to Cash Collateralize (vor backstop) each such Letter of Credit shall be denominated in Dollars or an Alternative Currency; have been made, (viiv) no Letter of Credit shall be issued if it would be illegal under any applicable law Requirement of Law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and , (viiv) no Letter of Credit shall be issued by a Letter of Credit Issuer an Issuing Bank after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Majority Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer such Issuing Bank shall have received a written notice (A) of (x) rescission of such notice from the party or parties originally delivering such notice or notice, (yB) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.113.1 or (C) that such Default or Event of Default is no longer continuing, (vi) without the consent of the applicable Issuing Bank, no Letter of Credit shall be issued in any currency other than Dollars and (vii) the aggregate Stated Amount of all Letters of Credit issued on the Closing Date shall not exceed $37,000,000.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer applicable Issuing Bank (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 4 contracts
Samples: Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct or indirect benefit of, account of the Borrower and (or, so long as the Borrower is the primary obligor, for the account of Holdings or any Restricted Subsidiaries, a letter of credit or Subsidiary (other than the Borrower)) letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effecteffect (or with respect to any Letter of Credit Issuer, exceed such Letter of Credit Issuer’s Letter of Credit Commitment); (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerthereof (except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, the Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized or backstopped (in the case of a backstop only, on terms reasonably satisfactory to such Letter of Credit Issuer), the Revolving Credit Lenders; (viv) each the Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one two Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment (or with respect to a Letter of Credit Issuer, the Letters of Credit outstanding with respect to Letters of Credit issued by such Letter of Credit Issuer shall not exceed such Letter of Credit Issuer’s Letter of Credit Commitment).
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof50,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative CurrencyDollars;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower have entered into arrangements reasonably satisfactory to the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderLender or such risk has been reallocated in accordance with Section 2.16.
(f) The Letter of Credit Issuer shall not amend increase the Stated Amount of any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 3 contracts
Samples: Joinder and Amendment Agreement (National Vision Holdings, Inc.), First Lien Credit Agreement (National Vision Holdings, Inc.), First Lien Credit Agreement (National Vision Holdings, Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 3 contracts
Samples: Amendment Agreement (First Data Corp), Credit Agreement (First Data Corp), Credit Agreement (First Data Corp)
Letters of Credit. (ai) Subject to and upon Upon the terms and subject to the conditions herein set forthhereof and of Applicable Law, at any time and the Agent agrees, upon the request of the Borrower, to cause Letters of Credit payable in Dollars to be issued from time to time at and after the Original Closing Date and prior to the Commitment Termination Date (and to cause Letters of Credit previously issued hereunder to be extended); provided, however, that (A) the Borrower shall not request, and the Agent shall not cause to be issued, any Letter of Credit if, after giving effect thereto, (x) the then current L/C Maturity DateExposure would exceed the aggregate Commitments to issue Letters of Credit then in effect or (y) the aggregate outstanding principal amount of all Loans and L/C Exposure would exceed the Maximum Loan Amount and (B) the Borrower shall not request, and the Agent shall not cause to be issued or extend, any Letter of Credit Issuer agreeshaving an expiration date (x) later than the tenth day prior to the Commitment Termination Date or (y) more than one year after its date of issuance; provided, in reliance upon however, that a Letter of Credit may, if requested by the agreements Borrower, provide that such Letter of Credit is renewable for successive periods of one year or less unless the Revolving Credit Lenders set forth in this Section 3, Agent shall have delivered a notice of non-renewal to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter beneficiary of credit or letters of credit (the “Letters of Credit” and each, a “such Letter of Credit”.
(ii) in such form as may be approved by Immediately upon the Letter issuance of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoingCredit, (i) no Letter of Credit each Lender shall be issued deemed to, and hereby agrees to, have irrevocably purchased from the Stated Amount of which, when added to the Letters of Credit Outstanding at issuer thereof a participation in such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; accordance with such Lender's Percentage.
(iviii) each Each Letter of Credit may, at the option of the Agent, provide that the issuer thereof may (but shall have not be required to) pay all or any part of the maximum amount which may at any time be available for drawing thereunder to the beneficiary thereof upon the occurrence or continuation of an expiration date occurring no later than one year after the date Event of issuance thereof, unless otherwise agreed upon by the Administrative Agent Default and the Letter acceleration of Credit Issuerthe maturity of the Loans, provided that that, if payment is not then due to the beneficiary, the Agent shall cause the funds in no event shall such expiration date occur later than question to be deposited in a segregated account with the L/C Maturity Date; (v) each Letter of Credit Agent to secure payment to the beneficiary, and any funds so deposited shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for paid to the beneficiary of the Letter of Credit if conditions to such payment are satisfied or returned to the Agent (or, if all Obligations shall have been paid in full in cash, to the 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 Agent as provided in this paragraph shall be treated for all purposes of this Agreement as a drawing duly honored by the issuer of the related Letter of Credit.
(b) Whenever the Borrower desires the issuance of a Letter of Credit, it shall deliver to the Agent a written notice no later than 2:00 p.m. (New York City time) at least three (3) Business Days prior to the proposed date of issuance. That notice shall specify (i) the proposed date of issuance (which shall be a Business Day), (ii) the face amount of the Letter of Credit, (iii) the expiration date of the Letter of Credit issued and (iv) the name and address of the beneficiary. Such notice shall be accompanied by a brief description of the underlying transaction and, upon request of the Agent, the Borrower shall provide additional details regarding the underlying transaction. Concurrently with the giving of written notice of a request for the issuance of a Letter of Credit, the Borrower shall provide a precise description of the documents and the verbatim text of any certificate to be presented by the beneficiary of such Letter of Credit which, if presented by such beneficiary prior to the expiration date of the Letter of Credit, would require the issuer thereof to make payment under the Letter of Credit; provided, however, that the Agent, in its favor; reasonable discretion, may require customary changes in any such documents and certificates to be presented by the beneficiary.
(viic) no The acceptance and payment of drafts under any Letter of Credit shall be issued by made in accordance with the terms of such Letter of Credit and the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 500, as adopted or amended from time to time. The issuer of a Letter of Credit Issuer after shall be entitled to honor any drafts and accept any documents presented to it has received by the beneficiary of such Letter of Credit in accordance with the terms of such Letter of Credit and believed by the issuer in good faith to be genuine. The issuer of a written notice from Letter of Credit shall not have any duty to inquire as to the accuracy or authenticity of any draft or other drawing documents which may be presented to it, but shall be responsible only to determine in accordance with customary commercial practices that the documents which are required to be presented before payment or acceptance of a draft under any Letter of Credit Party or have been delivered and that they comply on their face with the Administrative Agent or requirements of that Letter of Credit.
(d) If the Required Revolving issuer of any Letter of Credit Lenders stating that shall make payment on any draft presented under a Letter of Credit (regardless of whether a Default or Event of Default or acceleration has occurred occurred), the Agent shall give notice of such payment to the Lenders and is continuing until each Lender hereby authorizes and requests the Agent to advance for its account pursuant to the terms hereof its share of such time as payment based upon its Percentage participation in the Letter of Credit Issuer and agrees promptly to reimburse the Agent in immediately available funds for the Dollar equivalent of the amount so advanced on its behalf. If such reimbursement is not made by any Lender in immediately available funds on the same day on which the issuer shall have received a written notice of (x) rescission of made payment on any such notice from the party or parties originally delivering draft, such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) Lender shall pay interest thereof to the Administrative Agent and at a rate per annum equal to the Letter Agent's cost of Credit Issuer (which obtaining overnight funds in the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved]New York Federal Funds Market.
(e) The Borrower is absolutely, unconditionally and irrevocably obligated to reimburse all amounts drawn under each Letter of Credit. If any draft is presented under a Letter of Credit, the payment of which is required to be made at any time on or before the Commitment Termination Date, then payment by the issuer of such draft shall constitute a Loan hereunder and interest shall accrue from the date such issuer makes payment on such draft under such Letter of Credit. If any draft is presented under a Letter of Credit, the payment of which is required to be made after the Commitment Termination Date or at a time when an Event of Default or Default shall have occurred and then be continuing, then the Borrower shall immediately pay to the Agent, in immediately available funds, the full amount of such draft together with interest thereon at a rate per annum of 2% in excess of the Alternate Rate from the date on which the issuer of the relevant Letter of Credit Issuer shall not be under makes such payment of such draft until the date it receives full reimbursement for such payment from the Borrower. The Borrower further agrees that the Agent may reimburse itself or the issuer for such drawing from the balance in any obligation other account of the Borrower maintained with the Agent or any of its Affiliates.
(f) The Agent agrees to issue notify the Borrower if payment on any draft is made by the issuer of any Letter of Credit if:hereunder; provided, however, that an inadvertent failure by the Agent to so notify the Borrower shall not be a breach by the Agent of such obligation.
(g) The Borrower agrees to pay to the Agent or directly to the issuer of any Letter of Credit issued hereunder with respect to any such Letters of Credit any and all charges imposed by any issuing, confirming or advising bank.
(h) If by reason of (i) any orderchange in Applicable Law after the Closing Date, judgment or decree in the interpretation or administration thereof (including, without limitation, any request, guideline or policy not having the force of law) by any Governmental Authority charged with the administration or arbitrator shall interpretation thereof or (ii) compliance by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, Agent or any law applicable to the Letter of Credit Issuer or Lender with any direction, request or directive requirement (whether or not having the force of law) from issued after the Closing Date by any Governmental Authority or monetary authority, including, without limitation, any change whether or not proposed or published prior to the Closing Date and any modifications to Regulation D occurring after the Closing Date:
(A) the Agent or any Lender shall be subject to any tax, levy, impost, duty, fee, charge, deduction or withholding of any nature with jurisdiction over the respect to any Letter of Credit Issuer shall prohibit(other than withholding tax imposed by the United States of America or any other tax, levy, impost, duty, fee, charge, deduction or withholding (1) that is measured with respect to the overall net income of the Agent or such Lender , and that is imposed by the United States of America, or request by the jurisdiction in which the Agent or such Lender is incorporated, or the Agent or such Lender has its principal office or a presence which is not otherwise connected with, or required by, this transaction (or any political subdivision or taxing authority thereof or therein) or (2) that is imposed solely by reason of the Agent or such Lender failing to make a declaration of, or otherwise to establish, non-residence or to make any other claim for exemption, or otherwise to comply with any certification, identification, information, documentation or reporting requirements prescribed under the laws of the relevant jurisdiction, in those cases where the Agent or such Lender may properly make the declaration or claim or so establish non-residence or otherwise comply), or to any variation thereof or to any penalty with respect to the maintenance or fulfillment of its obligations under this Section 2.13, whether directly or by such being imposed on or suffered by the Agent or such Lender;
(B) the basis of taxation of any fee or amount payable hereunder with respect to any Letter of Credit Issuer refrain fromor any participation therein shall be changed;
(C) any reserve, the issuance deposit or similar requirement is or shall be applicable, imposed or modified in respect of letters of credit generally or such any Letter of Credit in particular caused to be issued by the Agent; or
(D) there shall be imposed on the Agent, any Lender or shall impose upon the Letter any issuer of Credit Issuer with respect to such a Letter of Credit any restrictionother condition regarding this Section 2.13, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if or any participation therein; and the Letter result of Credit Issuer would not be permitted at such time the foregoing is to issue such Letter directly or indirectly increase the cost to the Agent, any Lender or the issuer of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the of issuing, making or maintaining any Letter of Credit Issuer would have no obligation at such time to issue such Letter or of Credit in its amended form under the terms hereofpurchasing or maintaining any participation therein, or (B) to reduce the beneficiary amount receivable in respect thereof by the Agent, any Lender or any such issuer, then and in any such case the Agent may, at any time, notify the Borrower, and the Borrower shall promptly pay the Agent upon its demand such amounts as the Agent may specify to be necessary to compensate for such additional cost or reduced receipt. The determination by the Agent, any Lender or any such issuer of such Letter any amount due pursuant to this Section 2.13 as set forth in a certificate setting forth the calculation thereof in reasonable detail shall, in the absence of Credit does not accept demonstrable error, be final, conclusive and binding on all of the proposed amendment to such Letter of Creditparties hereto.
(hi) The Letter If at any time when an Event of Credit Issuer Default shall act on behalf of the Revolving Credit Lenders with respect to have occurred and be continuing, any Letters of Credit issued shall remain outstanding, then the Agent may require the Borrower to deliver to it Cash Equivalents in an amount equal to the full amount of the L/C Exposure or to furnish other security acceptable to the Agent. Any amounts so delivered pursuant to the preceding sentence shall be applied to reimburse the Agent for the amount of any drawings honored under Letters of Credit; provided, however, that if prior to the Maturity Date, (i) no Default or Event of Default is then continuing, then the Agent shall return all of such collateral relating to such deposit to the Borrower if requested by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities or (Aii) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued shall expire or be returned by it or proposed the beneficiary so that the amount of the Cash Equivalents delivered to the Agent hereunder shall exceed the then current L/C Exposure, then such excess shall first be issued by it applied to pay any Obligations then due under this Agreement and Issuer Documents pertaining the remainder shall be returned to such the Borrower.
(j) Notwithstanding the termination of the Commitments and the repayment of the Loans, the obligations of the Borrower under this Section 2.13 shall remain in full force and effect until the issuers of all Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter shall have been irrevocably released from their obligations with regard to any and all Letters of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerCredit.
Appears in 3 contracts
Samples: Loan and Security Agreement (Belair Capital Fund LLC), Loan and Security Agreement (Belport Capital Fund LLC), Loan and Security Agreement (Belcrest Capital Fund LLC)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, Issuing Lender may, but shall not be required to (provided, however, that the Issuing Lender hereby agrees, subject to satisfaction of all conditions herein, to issue on the Effective Date back to back Letters of Credit or a replacement Letter of Credit with respect to the Existing Letters of Credit), through the Issuing Office, at any time and from time to time from and after the Original Closing Date and date hereof until thirty (30) days prior to the L/C Revolving Credit Maturity Date, upon the written request of the Borrowers accompanied by a duly executed Letter of Credit Agreement and such other documentation related to the requested Letter of Credit as the Issuing Lender may require, issue Letters of Credit in Dollars for the account of the Borrowers, in an aggregate amount for all Letters of Credit issued hereunder at any one time outstanding not to exceed the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Maximum Amount. Each Letter of Credit shall be issued the Stated Amount in a minimum face amount of which, when added One Hundred Thousand Dollars ($100,000) (or such lesser amount as may be agreed to the Letters of Credit Outstanding at such time, would exceed the by Issuing Lender) and each Letter of Credit Commitment then in effect; (including any renewal thereof) shall expire not later than the first to occur of (i) twelve (12) months after the date of issuance thereof and (ii) subject five (5) Business Days prior to clause (f) belowthe Revolving Credit Maturity Date in effect on the date of issuance thereof, no unless such Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures is backstopped at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no of such Letter of Credit in an Alternative Currency shall be issued by a letter of credit reasonably satisfactory to the Stated Amount Issuing Lender or the Borrowers have posted on the date of which would cause the Aggregate Multicurrency Exposures at the time issuance of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each such Letter of Credit shall have cash collateral to an expiration account at the Issuing Lender and in which the Borrowers grant a security interest to the Agent (for the benefit of the Lenders) in an amount equal to 103% of the face amount of the outstanding Letters of Credit as of such date occurring no later than one year on terms satisfactory to the Agent and the Issuing Lender in their reasonable discretion, in which case the expiry date of such cash collateralized or backstopped Letters of Credit may be up to twelve (12) months after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the provided that any standby Letter of Credit Issuerwith a 1-year tenor may provide for automatic renewal thereof for additional 1-year periods (which, provided that in no event shall such extend beyond the date referred to in the foregoing clause (ii), except to the extent cash collateralized or backstopped in accordance with the foregoing at the time of issuance thereof), unless the Issuing Lender notifies the beneficiary thereof prior to the then applicable expiration date occur later than that such Letter of Credit will not be renewed. The submission of all applications in respect of and the L/C Maturity Date; (v) issuance of each Letter of Credit hereunder shall be denominated subject in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable all respects to such industry rules and governing law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) are reasonably acceptable to the Administrative Agent Issuing Lender. In the event of any conflict between this Agreement and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) Document other than any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer this Agreement shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lendercontrol.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 3 contracts
Samples: Credit Agreement (Archaea Energy Inc.), Revolving Credit and Term Loan Agreement (Archaea Energy Inc.), Revolving Credit and Term Loan Agreement (Archaea Energy Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the each Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that that, in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders any Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.114.1; (viii) each commercial Letter of Credit shall be a sight letter of credit and (ix) unless otherwise agreed by such Letter of Credit Issuer in its sole discretion, no Letter of Credit Issuer shall be required to issue any Letter of Credit if the Stated Amount of such Letter of Credit, when added to the Letter of Credit Outstandings at such time in respect of Letters of Credit previously issued by such Letter of Credit Issuer, would exceed the amount of such Letter of Credit Issuer’s Letter of Credit Sublimit.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved]The parties hereto agree that the Existing Letters of Credit shall be deemed to be Letters of Credit for all purposes under this Agreement, without any further action by the Borrower, the Letter of Credit Issuer or any other Person.
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereofof $100,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 3 contracts
Samples: Joinder Agreement (HCA Healthcare, Inc.), Joinder Agreement (HCA Healthcare, Inc.), Restatement Agreement (HCA Healthcare, Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct or indirect benefit of, Holdings, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, applicant and shall be jointly and severally liable with respect to, each Letter of Credit issued for the account of Holdings or a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, thereof (except as set forth in Section 3.2(d)); provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer; (viv) each Letter of Credit shall be denominated in Dollars Dollars, Euro or an Alternative Currency; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one two Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved]The parties hereto agree that the Existing Letters of Credit shall be deemed to be Letters of Credit for all purposes under this Agreement, without any further action by the Borrower, the Letter of Credit Issuer or any other Person.
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) unless otherwise agreed by the Administrative Agent and the applicable Letter of Credit Issuer, such Letter of Credit is denominated in a currency other than Dollars Dollars, Euro or an Alternative Currency;
(v) unless otherwise agreed by the Administrative Agent and the applicable Letter of Credit Issuer, the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower has entered into arrangements satisfactory to the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, hereof or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, omissions and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 3 contracts
Samples: Credit Agreement (PRA Health Sciences, Inc.), Credit Agreement (PRA Health Sciences, Inc.), Credit Agreement (PRA Health Sciences, Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 36.24 and elsewhere in this Loan Agreement, the Lender agrees to issue from time use its best efforts to time from the Original Closing Date through the L/C Maturity Date upon the request of, and arrange for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter issuance by GMAC of credit or letters of credit (the “Letters of Credit” Credit requested by the Borrower, in substantially the form of Exhibit A to the Third Amendment to Loan Agreement and eachto Other Loan Documents, a “subject to the following conditions: (i) the Lender, in its sole discretion, shall have approved the issuance of any such requested Letter of Credit”, and such Letter of Credit is to be issued for the exclusive purpose of providing security to a seller in lieu of a cash deposit with respect to a proposed purchase of land by the Borrower from such seller or for such other purpose as the Lender shall have approved in its sole discretion, (ii) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that Amount shall not exceed Fifteen Million Dollars ($15,000,000) at any time, (iii) the Borrower Lender shall be a co-applicant, and jointly and severally liable with respect to, each not arrange for the issuance of any such requested Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided thatif, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies Credit, the outstanding principal balance of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent Loan and the Letter of Credit IssuerAmount would exceed the Loan Amount, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does Lender shall not as of arrange for the issuance date of any such requested Letter of Credit issue letters if, after giving effect to the issuance of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each caseCredit, the Letter of Credit Issuer has entered into satisfactory arrangements with Amount would exceed fifty percent (50%) of the Borrower or outstanding principal balance of the Loan, (v) the Lender shall not arrange for the issuance of any such Revolving Credit Lender to eliminate the requested Letter of Credit Issuer’s risk with respect to which would have an expiry date which is more than one (1) year from the date of issuance of such Revolving Credit Lender.
(f) The Letter of Credit Issuer or which is later than the Approval Period Termination Date, and (vi) the Lender shall not amend attempt to arrange for the issuance of any such requested Letter of Credit if the Letter of Credit Issuer would not be permitted at such time GMAC is unable or unwilling to issue such requested Letter of Credit in its amended form under the terms hereofCredit.
(gb) The Whenever the Borrower desires to obtain issuance of a Letter of Credit Issuer Credit, the Borrower shall be under no obligation request the same by written notice to amend any Letter the Lender, which notice shall specify the requested amount of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under Credit, the terms hereof, or (B) the requested beneficiary of such Letter of Credit and the purpose of such requested Letter of Credit, together with all relevant information related to the requested Letter of Credit, including, without limitation, a copy of the related land purchase agreement, and such other information related to such requested Letter of Credit as the Lender shall request. If requested by the Lender, the Borrower shall execute such letter of credit applications, agreements and other documentation as the Lender may require on the forms provided by the Lender. Upon the Lender’s approval of a requested Letter of Credit and upon satisfaction of all other conditions to issuance of such Letter of Credit set forth in this Agreement, the Lender shall request that GMAC issue and deliver the requested Letter of Credit; provided, however, in no event shall the Lender have any liability to the Borrower or to any other Person in the event GMAC does not accept issue or deliver the proposed amendment Letter of Credit as requested. In the event that GMAC advises the Lender that GMAC will not issue a requested Letter of Credit, the Lender shall promptly notify the Borrower of GMAC’s determination not to issue the requested Letter of Credit.
(c) The Borrower hereby agrees to pay to the Lender, for each Letter of Credit, a fee equal to the sum of (i) one and one-fourth of one percent (1.25%) per annum of the face amount of such Letter of Credit for the period commencing on the date of issuance of such Letter of Credit and ending on the expiry day of such Letter of Credit, and (ii) the fees, if any, required by GMAC for issuing such Letter of Credit. In the event that GMAC advises the Lender that GMAC will charge a fee for issuing any requested Letter of Credit, the Lender shall promptly notify the Borrower of the amount of such fee prior to issuance of such requested Letter of Credit. The foregoing letter of credit fees shall be payable in advance to the Lender prior to issuance of such Letter of Credit. In addition to the foregoing fees, the Borrower shall pay to the Lender, on written demand by the Lender, all administrative fees charged by the Lender or GMAC in connection with the honoring of drafts under such Letter of Credit and all other activity with respect to such Letter of Credit.
(hd) The Borrower and the Lender acknowledge and agree as follows:
(1) The Lender is not obligated to provide, obtain or procure any Letter of Credit;
(2) The Lender’s sole obligation to the Borrower with respect to the Letters of Credit are as set forth in this Agreement and the other Loan Documents;
(3) The Lender has an absolute right to decline approval for any requested Letter of Credit Issuer shall act if (i) any Event of Default or Potential Default has occurred and is continuing, or (ii) the Lender decides, in its sole discretion for any reason, not to approve the requested Letter of Credit.
(e) The Borrower hereby irrevocably agrees to reimburse the Lender with respect to all amounts drawn on behalf any Letter of the Revolving Credit Lenders plus any and all reasonable charges and expenses incurred relative to any such drawing on any such Letter of Credit (all such amounts with respect to any Letters such Letter of Credit issued are hereinafter referred to, collectively, as the “Obligation of Reimbursement” with respect to such Letter of Credit). Subject to all of the terms and conditions set forth in this Agreement, in the event the Borrowing Base Allowable Disbursement Amount (excluding any reduction thereto attributable to the Obligation of Reimbursement related to any given Letter of Credit) is sufficient to permit the Borrower to request a disbursement of the Loan under the ABF Program for the purposes of repaying the Obligation of Reimbursement with respect to such Letter of Credit, then the Borrower may request a disbursement under the ABF Program for the purpose of repaying the Obligation of Reimbursement with respect to such Letter of Credit. In addition, in the event that the Obligation of Reimbursement with respect to such Letter of Credit has not been fully repaid within five (5) Business Days following any drawing under such of Letter of Credit, the Lender, without any request from or notice to the Borrower, is hereby irrevocably authorized to (but has no obligation to) make a disbursement of the Loan in an amount equal to the amount paid by it the Lender or any Affiliate of the Lender to GMAC to reimburse GMAC for any amount paid by GMAC in connection with a draw on any Letter of Credit plus any and all reasonable charges and expenses incurred relative to any such drawing, regardless of whether the Borrowing Base Allowable Disbursement Amount (excluding any reduction thereto attributable to the Obligation of Reimbursement related to such Letter of Credit) is sufficient to permit the Borrower to request a disbursement of the Loan under the ABF Program. The Borrower’s failure to fully repay any Obligation or Reimbursement with respect to a Letter of Credit within five (5) Business Days following any drawing under such Letter of Credit shall constitute an Event of Default under this Agreement.
(f) Any unpaid Obligation of Reimbursement with respect to a Letter of Credit shall bear interest at the interest rate then in effect under the Note and shall be calculated on the basis of a 360 day year, comprised of twelve (12) thirty (30) day months. Interest due with respect to an unpaid Obligation of Reimbursement shall be due and payable from time to time on demand of the Lender.
(g) The obligations of the Borrower to the Lender with respect to repayment of any Obligation or Reimbursement with respect to any Letter of Credit, or any disbursement of the Loan under this Section 6.24 with respect thereto, shall be absolute, unconditional and irrevocable to the extent permitted by law, and shall be performed strictly in accordance with the terms of this Loan Agreement, irrespective of any of the following circumstances:
(1) any lack of validity or enforceability of any Loan Document, any Letter of Credit, any of the documents associated therewith and relating to any Letter of Credit, or any other agreement or instrument underlying any Loan Documents or any Letter of Credit, or any failure to comply strictly with the terms of any Loan Document, any Letter of Credit or any other agreement or instrument;
(2) any amendment or waiver of, or consent to departure from, any Letter of Credit, any document relating thereto or any Loan Document;
(3) the existence of any claim, setoff, defense or other right which the Lender, any Affiliate of Lender or the Borrower may have at any time against any other party or any beneficiary or any transferee of any Letter of Credit (or any persons or entities for whom any such party or beneficiary or any such transferee may be acting), the issuer of any Letter of Credit or any other person or entity, whether in connection with a Letter of Credit, any document relating thereto, any Loan Document, any agreement or transaction underlying a Letter of Credit or any unrelated transactions;
(4) any statement, certificate, draft or other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever;
(5) payment by the issuer of a Letter of Credit under such Letter of Credit against presentation of a draft or certificate which does not comply with the terms of the Letter of Credit; or
(6) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
(h) Without limiting in any way any Obligation of Reimbursement with respect to a Letter of Credit or any disbursement of the Loan under this Section 6.24 which is owing by the Borrower to the Lender, the Borrower reserves any claim which the Borrower may have against the Lender to the extent of any direct damages (as opposed to consequential or exemplary damages) suffered by the Borrower as a result of the gross negligence or willful misconduct of the Lender or GMAC in connection with the honoring or other administration of such Letter of Credit. Nothing in this Section 6.24(h) shall be construed as a reservation by the Borrower of a claim against GMAC to the extent of any damages suffered by the Borrower as a result of the gross negligence or willful misconduct of the Lender or GMAC in connection with the honoring or other administration of any Letter of Credit.
(i) If at any time the Letter of Credit Issuer Amount shall have all exceed fifty percent (50%) of the benefits and immunities (A) provided outstanding principal balance of the Loan, upon request of the Lender, the Borrower shall immediately deliver to Lender for deposit by the Lender in a collateral account pledged to the Administrative Agent in Section 13 with respect Lender (the “Special Collateral Account”) an amount equal to any acts taken or omissions suffered the amount by which the Letter of Credit Issuer Amount exceeds fifty percent (50%) of the outstanding principal balance of the Loan. The Borrower hereby grants the Lender a security interest in connection with Letters the Special Collateral Account and in all amounts now or hereafter in the Special Collateral Account to secure payment of Credit issued all obligations now or hereafter owing by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect Borrower to the Letter of Credit Issuer.Lender. The Borrower agrees to execute such agreements and other documentation as the Lender shall reasonably request from time to time to evidence such security interest. All interest or other earnings on amounts in the Special Collateral Account shall be credited to the Special Collateral
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (William Lyon Homes)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Each Letter of Credit shall be issued (or the Stated Amount stated maturity thereof extended or terms thereof modified or amended) for the account of which, when added the Borrower or a Subsidiary of the Borrower (other than Consumers or any Subsidiary thereof) on not less than three (3) Business Days’ prior written notice thereof to the Letters Administrative Agent (which shall promptly distribute copies thereof to the Lenders) and the relevant Issuing Bank and shall be denominated in Dollars or in an Alternative Currency. Each such notice (a “Request for Issuance”) shall be delivered no later than 12:00 noon (New York City time) on the third Business Day prior to the proposed date of Credit Outstanding at issuance, extension, modification or amendment and shall specify (i) the date (which shall be a Business Day) of issuance of such time, would exceed the Letter of Credit Commitment then in effect; (iior the date of effectiveness of such extension, modification or amendment) subject to clause and the stated expiry date thereof (f) below, no Letter of Credit which shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than the earlier of the date that is five (5) Business Days (or, in the case of any commercial Letter of Credit, thirty (30) Business Days) prior to the Commitment Termination Date and the date which is one year after the requested date of issuance thereofissuance, provided that any Letter of Credit with a one year tenor may provide for the renewal thereof for additional periods of up to one year which shall in no event extend beyond the date which is five (5) Business Days (or, in the case of any commercial Letter of Credit, thirty (30) Business Days) prior to the Commitment Termination Date), (ii) the proposed stated amount of such Letter of Credit (which shall not be less than $100,000 (or the Dollar Equivalent thereof in an Alternative Currency) unless otherwise agreed upon by the Administrative Agent and applicable Issuing Bank), (iii) the Letter of Credit Issuer, provided that currency in no event shall which such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in (which currency shall be Dollars or an Alternative Alternate Currency; ), and (viiv) no 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 issued if it would be illegal under any applicable law irrevocable unless modified or rescinded by the Borrower in writing not less than two (2) Business Days prior to the proposed date of issuance (or effectiveness) specified therein. Not later than 12:00 noon (New York City time) on the proposed date of issuance (or effectiveness) specified in such Request for the beneficiary 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 have the Administrative Agent, which shall promptly furnish notice thereof to each Lender.
(b) Schedule II contains a schedule of certain letters of credit issued for the account of the Borrower prior to the Closing Date. Subject to the satisfaction of the applicable conditions contained in Article VI, from and after the Closing Date such letters of credit shall be deemed to be Letters of Credit issued pursuant to this Article IV for all purposes hereunder (each such Letter of Credit, a “Transitional Letter of Credit”). For purposes of clarification, each term or provision applicable to the issuance of a Letter of Credit issued in its favor; and (viiincluding conditions applicable thereto) no Letter shall be deemed to include the deemed issuance of the Transitional Letters of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or on the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1Closing Date.
(c) Upon at least one Business Day’s prior written notice Each Lender severally agrees with each Issuing Bank to participate in the Extension of Credit resulting from the issuance or deemed issuance (or telephonic notice promptly confirmed in writingextension, modification or amendment) to the Administrative Agent and the of each Letter of Credit Issuer issued or deemed issued (which or extended, amended or modified) pursuant to this Section 4.02 in the Administrative Agent shall promptly notify manner and the applicable Lendersamount provided in Section 4.04(b), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, and the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the deemed issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable shall be deemed to letters of credit generally;
(iii) except as otherwise agreed be a confirmation by the Administrative Agent each Issuing Bank and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date each Lender of such requested Letter of Credit issue letters of credit participation in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lenderamount.
(fd) The Letter of Credit Issuer Notwithstanding anything herein to the contrary, no Issuing Bank shall not have any obligation to, and no Issuing Bank shall, issue, extend, amend or modify any Letter of Credit if on the Letter date of Credit Issuer would not be permitted such issuance, extension, amendment or modification, before or after giving effect thereto, (i) the Total Outstandings at such time to issue such Letter of Credit in its amended form under would exceed the terms hereof.
Commitments, (g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (Aii) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf Dollar Equivalent of the Revolving Credit Lenders aggregate LC Outstandings with respect to any Letters of Credit issued by it and denominated in euros would exceed the documents associated therewith and Euro Sublimit (iii) the Letter of Credit Issuer shall have all Dollar Equivalent of the benefits and immunities (A) provided to the Administrative Agent in Section 13 aggregate LC Outstandings with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it denominated in Indian Rupees would exceed the Indian Rupee Sublimit or proposed (iv) the Dollar Equivalent of the aggregate LC Outstandings with respect to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if denominated in Canadian Dollars would exceed the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerCanadian Dollar Sublimit.
Appears in 2 contracts
Samples: Credit Agreement (Consumers Energy Co), Credit Agreement (CMS Energy Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Amendment and Restatement Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the New Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Amendment and Restatement Date through the L/C Maturity Date upon the request ofof the Parent Borrower, and for the direct or indirect benefit of, the Borrower Borrowers and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Parent Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted SubsidiarySubsidiary that is not a Borrower.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ New Revolving Credit Exposures at the such time of the issuance thereof to exceed the Total lesser of the Borrowing Base and the New Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (viv) each Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders any Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.114.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Parent Borrower on behalf of the Borrowers shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof100,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative CurrencyDollars;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any New Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any New Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Parent Borrower or such New Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such New Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the New Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith therewith, and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (HCA Holdings, Inc.), Credit Agreement (Hca Inc/Tn)
Letters of Credit. (a) Subject to the terms contained in this Agreement and the other Loan Documents, upon the terms and conditions herein set forth, at any time and from time to time after receipt of a notice in accordance with Section 2.2(b) requesting the Original Closing Date and prior to the L/C Maturity Dateissuance of a Letter of Credit, the Fronting Bank shall issue a Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) Credit in such form as may be approved is reasonably acceptable to the Borrower and Fronting Bank in an amount or amounts equal to the amount or amounts requested by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted SubsidiaryBorrower.
(b) Notwithstanding the foregoing, (i) no Each Letter of Credit shall be issued in the Stated Amount minimum amount of whichOne Million Dollars ($1,000,000).
(c) The Letter of Credit Usage shall be no more than $75,000,000 at any one time.
(d) There shall be no more than ten (10) Letters of Credit and Existing Letters of Credit outstanding at any one time.
(e) In the event of any request for a drawing under any Letter of Credit or Existing Letter of Credit, when added as applicable, by the beneficiary thereunder, the Fronting Bank shall notify the Borrower and the Administrative Agent (and the Administrative Agent shall endeavor to notify each Bank thereof) on or before the date on which the Fronting Bank intends to honor such drawing, and, except as provided in this subsection (e), the Borrower shall reimburse the Fronting Bank, in immediately available funds, on the same day on which such drawing is honored in an amount equal to the amount of such drawing. Notwithstanding anything contained herein to the contrary, however, unless Borrower shall have notified the Administrative Agent, and the Fronting Bank prior to 11:00 a.m. (New York time) on the Domestic Business Day immediately prior to the date of such drawing that Borrower intends to reimburse the Fronting Bank for the amount of such drawing with funds other than the proceeds of the Loans, the Borrower shall be deemed to have timely given a Notice of Borrowing pursuant to Section 2.2 to the Administrative Agent, requesting a Borrowing of Alternate Base Rate Loans on the date on which such drawing is honored and in an amount equal to the amount of such drawing. Each Bank (other than the Fronting Bank) shall, in accordance with Section 2.4(b), make available its share of such Borrowing to the Administrative Agent, the proceeds of which shall be applied directly by the Administrative Agent to reimburse the Fronting Bank for the amount of such draw. In the event that any such Bank fails to make available to the Fronting Bank the amount of such Bank’s participation on the date of a drawing, the Fronting Bank shall be entitled to recover such amount on demand from such Bank together with interest at the Federal Funds Rate commencing on the date such drawing is honored.
(f) If, after the date hereof, any change in any law or regulation or in the interpretation thereof by any court or administrative or governmental authority charged with the administration thereof shall either (a) impose, modify or deem applicable any reserve, special deposit or similar requirement against letters of credit issued by, or assets held by, or deposits in or for the account of, or participations in any letter of credit, upon any Bank (including the Fronting Bank) or (b) impose on any Bank any other condition regarding this Agreement or such Bank (including the Fronting Bank) as it pertains to the Letters of Credit Outstanding at such timeand Existing Letters of Credit or any participation therein, would exceed and the result of any event referred to in the preceding clause (a) or (b) shall be to increase the cost to the Fronting Bank or any Bank of issuing or maintaining any Letter of Credit Commitment or Existing Letter of Credit, as applicable, or participating therein then the Borrower shall pay to the Fronting Bank or such Bank, within 15 days after written demand by such Bank (with a copy to the Administrative Agent), which demand shall be accompanied by a certificate showing, in effectreasonable detail, the calculation of such amount or amounts, such additional amounts as shall be required to compensate the Fronting Bank or such Bank for such increased costs or reduction in amounts received or receivable hereunder together with interest thereon at the Alternate Base Rate. The amount specified in the written demand shall, absent manifest error, be final and conclusive and binding upon the Borrower.
(g) The Borrower hereby agrees to protect, indemnify, pay and save the Fronting Bank harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and disbursements) which the Fronting Bank may incur or be subject to as a result of (i) the issuance of the Letters of Credit and Existing Letters of Credit, other than as a result of the gross negligence or wilful misconduct of the Fronting Bank or (ii) the failure of the applicable Fronting Bank to honor a drawing under any Letter of Credit or Existing Letter of Credit, as applicable, as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or governmental authority (collectively, “Governmental Acts”), other than as a result of the gross negligence or wilful misconduct of the Fronting Bank. As between the Borrower and the Fronting Bank, the Borrower assumes all risks of the acts and omissions of, or misuses of, the Letters of Credit or Existing Letters of Credit, as applicable, issued by the Fronting Bank, by the beneficiaries of such Letters of Credit or Existing Letters of Credit, as applicable. In furtherance and not in limitation of the foregoing, the Fronting Bank shall not be responsible (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of such Letters of Credit or Existing Letters of Credit, as applicable, even if it should in fact prove to be in any and all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) subject for the validity or insufficiency of any instrument transferring or assigning or purporting to clause (f) below, no transfer or assign any such Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no or Existing Letter of Credit in an Alternative Currency shall be issued Credit, as applicable, or the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance rights or benefits thereunder or proceeds thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect which may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of any such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Existing Letter of Credit, or any law applicable as applicable, to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority comply fully with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or conditions required in order to draw upon such Letter of Credit in particular or shall impose upon the Existing Letter of Credit Issuer with respect Credit, as applicable; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any message, by mail, facsimile transmission, or otherwise; (v) for errors in interpretation of any technical terms; (vi) for any loss or delay in the transmission or otherwise of any documents required in order to make a drawing under any such Letter of Credit or Existing Letter of Credit, as applicable, or of the proceeds thereof; (vii) for the misapplication by the beneficiary of any restriction, reserve or capital requirement (for which the such Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Existing Letter of Credit Issuer any unreimbursed lossCredit, cost or expense which was not applicable on as applicable, of the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance proceeds of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Existing Letter of Credit, or $10,000 or as applicable; and (viii) for any consequence arising from causes beyond the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as control of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains Fronting Bank, including any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unlessGovernment Acts, in each casecase other than as a result of the gross negligence or willful misconduct of the Fronting Bank. None of the above shall affect, impair or prevent the Letter vesting of the Fronting Bank’s rights and powers hereunder. In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by the Fronting Bank under or in connection with the Letters of Credit Issuer has entered into satisfactory arrangements with or Existing Letters of Credit, as applicable, issued by it or the Borrower related certificates, if taken or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer omitted in good faith, shall not amend put the Fronting Bank under any Letter of Credit if resulting liability to the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of CreditBorrower.
(h) The If the Fronting Bank or the Administrative Agent is required at any time, pursuant to any bankruptcy, insolvency, liquidation or reorganization law or otherwise, to return to the Borrower any reimbursement by the Borrower of any drawing under any Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the or Existing Letter of Credit Issuer Credit, as applicable, each Bank shall have all pay to the Fronting Bank or the Administrative Agent, as the case may be, its share of such payment, but without interest thereon unless the benefits and immunities (A) provided to Fronting Bank or the Administrative Agent is required to pay interest on such amounts to the person recovering such payment, in Section 13 which case with respect to any acts taken or omissions suffered by interest thereon, computed at the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissionssame rate, and (B) on the same basis, as additionally provided herein with respect the interest that the Fronting Bank or the Administrative Agent is required to the Letter of Credit Issuerpay.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Carramerica Realty Corp), Revolving Credit Agreement (Carramerica Realty Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, of the Parent Borrower and for the direct or indirect benefit of, of the Borrower Borrowers and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form and with such Issuer Documents as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Parent Borrower shall be a co-applicant, and jointly and severally liable with respect to, to each Letter of Credit issued for the account of a Restricted SubsidiarySubsidiary that is not a Borrower.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Tranche A Lenders’ Revolving Credit Exposures at the such time of the issuance thereof to exceed the Total Revolving Credit lesser of the Tranche A Borrowing Base and the Tranche A Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (viv) each Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Parent Borrower on behalf of the Borrowers shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter parties hereto agree that the Existing Letters of Credit Issuer shall not be under any obligation deemed to issue any Letter be Letters of Credit if:
(i) for all purposes under this Agreement, without any orderfurther action by the Parent Borrower, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive other Person.
(whether or not having the force of lawe) from If any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose L/C Obligation remains upon the Letter termination of the Revolving Credit Issuer with respect Commitments, to such Letter the extent (i) the lesser of Credit any restriction, reserve or capital requirement (for which x) the Letter of Credit Issuer is not otherwise compensated hereunderTranche A-1 Commitments and (y) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
Applicable Borrowing Base exceeds (ii) the issuance aggregate principal amount of all outstanding Tranche A-1 Loans (the “Excess Amount”) upon such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf termination of the Revolving Credit Commitments, the Tranche A Lenders shall be deemed to have sold to each Tranche A-1 Lender, and each Tranche A-1 Lender shall be deemed to have irrevocably and unconditionally so purchased from the Tranche A Lenders, without recourse or warranty, an undivided interest and participation (to the extent of such Tranche A-1 Lender’s Applicable Percentage of the lesser of such Excess Amount and such undivided interest and participation of each Tranche A Lender in such L/C Obligations) in each drawing thereunder and the obligations of the Borrowers under this Agreement and the other Loan Documents with respect to any Letters of Credit issued by it thereto and the documents associated therewith and the Letter of Credit Issuer such Tranche A-1 Lenders shall have be L/C Participants for all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuerpurposes hereunder.
Appears in 2 contracts
Samples: Abl Credit Agreement (Dollar General Corp), Abl Credit Agreement (Dollar General Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer each Issuing Bank, severally, and not jointly, agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, of the Borrower and for the direct or indirect benefit of, of the Borrower and the Restricted Subsidiaries, a standby letter of credit or standby letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form and with such Issuer Documents as may be approved by the Letter of Credit Issuer applicable Issuing Bank in its reasonable discretion; provided that the Borrower shall be a co-applicantapplicant of, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; , (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the all Lenders’ Revolving Credit Total Exposures at the such time of the issuance thereof to exceed the Total Revolving Credit Commitment Loan Limit then in effect; , (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereofor such longer period of time as may be agreed by the applicable Issuing Bank, unless otherwise agreed upon by the Administrative Agent and the applicable Issuing Bank or as provided under Section 3.2(b); provided that any Letter of Credit Issuermay provide for automatic renewal thereof for additional periods of up to 12 months or such longer period of time as may be agreed upon by the applicable Issuing Bank, provided subject to the provisions of Section 3.2(b); provided, further, that in no event shall such expiration date occur later than the L/C Maturity Date; Date unless arrangements which are reasonably satisfactory to the applicable Issuing Bank to Cash Collateralize (vor backstop) each such Letter of Credit shall be denominated in Dollars or an Alternative Currency; have been made, (viiv) no Letter of Credit shall be issued if it would be illegal under any applicable law Requirement of Law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and , (viiv) no Letter of Credit shall be issued by a Letter of Credit Issuer an Issuing Bank after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Majority Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer such Issuing Bank shall have received a written notice (A) of (x) rescission of such notice from the party or parties originally delivering such notice or notice, (yB) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.113.1 or (C) that such Default or Event of Default is no longer continuing, and (vi) without the consent of the applicable Issuing Bank, no Letter of Credit shall be issued in any currency other than Dollars.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer applicable Issuing Bank (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Vine Energy Inc.), Credit Agreement (Vine Energy Inc.)
Letters of Credit. (a) Subject As of the Effective Date, without further action on the part of any Person, each Existing Letter of Credit shall be automatically deemed to be a Letter of Credit issued hereunder for all purposes of this Agreement, and upon the original issuing bank of each such Letter of Credit shall be the Issuing Bank thereof for all purposes hereof.
(b) Each Issuing Bank agrees, on the terms and conditions herein hereinafter set forth, at any time and to Issue one or more Letters of Credit from time to time after during the Original Closing Date and period from the date of this Agreement until the third day prior to the L/C Maturity Date, scheduled Termination Date (i) for the Letter of Credit Issuer agrees, in reliance upon the agreements account of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and Borrower or (ii) jointly for the direct or indirect benefit of, the Borrower Borrower’s account and the Restricted account of any of its Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for to be in a minimum amount of $1,000,000 (or the account Equivalent thereof in any Committed Currency determined on the date of a Restricted Subsidiary.
(b) Notwithstanding delivery of the foregoing, (i) no applicable Notice of Letter of Credit shall be issued the Stated Amount Request) and each such Letter of which, when added Credit upon its Issuance to expire on or before three days prior to the scheduled Termination Date (except for Auto-Renewal Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then as provided in effect; (ii) subject to clause (fSection 3.01(d) below); provided, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in however, that an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer Issuing Bank shall not be under any obligation to issue obligated to, and shall not, Issue any Letter of Credit if:
(i) any order, judgment or decree after giving effect to the Issuance of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the sum of the then outstanding aggregate amount of all Letter of Credit Issuer or any request or directive (whether or not having Liability and the force then outstanding principal amount of law) from any Governmental Authority with jurisdiction over all Advances, shall exceed the Letter aggregate amount of Credit Issuer shall prohibitthe Commitments then in effect; provided, or request that, the respective Issuing Bank may assume that the Letter aggregate amount of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not Commitments then in effect on shall not be so exceeded if it has not been so informed by the Original Closing Date, or shall impose upon Designated Agent within two Business Days after receiving the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on notice delivered by the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material Borrower pursuant to itSection 3.03 below;
(ii) after giving effect to the issuance Issuance of such Letter of Credit, the then outstanding aggregate amount of Letter of Credit Liability in respect of all Letters of Credit shall exceed $800,000,000; provided, that, the respective Issuing Bank may assume that such amount shall not be so exceeded if it has not been so informed by the Designated Agent within two Business Days after receiving the notice delivered by the Borrower pursuant to Section 3.03 below;
(iii) after giving effect to the Issuance of such Letter of Credit, the then outstanding aggregate amount of all Letter of Credit Liability in respect of Letters of Credit Issued by such Issuing Bank shall exceed the Issuing Commitment of such Issuing Bank; or
(iv) the Borrower is not able to meet any of the applicable conditions set forth in Article IV, and the Designated Agent or the Majority Lenders shall have notified the Issuing Banks and the Borrower that no further Letters of Credit are to be Issued by the Issuing Banks due to such failure, and such notice has not been withdrawn. The Borrower agrees that, in connection with each Letter of Credit issued on behalf of one or more of its subsidiaries, it will be fully responsible for the reimbursement of disbursements and the payment of interest thereon as provided in Section 3.03, and for the payment of the fees due under Section 3.05, to the same extent as if such Letter of Credit were issued on its own behalf (and the Borrower hereby irrevocably waives any defenses that might otherwise be available to it as a guarantor of the obligations of any subsidiary on whose behalf any such Letter of Credit is issued).
(c) Each Issuing Bank shall provide to the Designated Agent in writing, within two Business Days of the last Business Day of each month, a report with respect to the outstanding Letters of Credit issued by such Issuing Bank, which report shall (i) set forth the undrawn amount and drawn but unreimbursed amount as of the end of each day during that month of all such Letters of Credit and (ii) shall calculate the Letter of Credit Liability in respect of such Letters of Credit on such date (converting any amounts of the Letter of Credit Liability which are denominated in a Committed Currency to Dollars for purposes of such calculation). Promptly after receiving such reports, the Designated Agent shall forward copies thereof to the Borrower.
(d) If the Borrower so requests, an Issuing Bank shall issue a Letter of Credit that has automatic renewal provisions (an “Auto-Renewal Letter of Credit”); provided, that any such Auto-Renewal Letter of Credit must permit the respective Issuing Bank to prevent any such renewal at least once in each twelve-month period (commencing with its date of Issuance) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Renewal Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Once an Auto-Renewal Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the respective Issuing Bank to permit the renewal of such Letter of Credit would violate at any time, provided, however, that, in no event shall an Issuing Bank permit any such renewal if such Issuing Bank has received notice on or before the day that is five Business Days before the Non-Renewal Notice Date from the Designated Agent that one or more policies of the applicable conditions specified in Section 4.02 is not then satisfied. Notwithstanding the above, nothing in this Section 3.01(d) shall limit the ability of the respective Issuing Bank to exercise any of its rights with respect to any Auto-Renewal Letter of Credit Issuer applicable to letters after the termination of credit generally;this Agreement.
(iiie) except as otherwise agreed by Each Issuing Bank shall notify the Administrative Designated Agent and in writing upon the reduction or termination of any Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount Issued by it within two Business Days after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists such reduction or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lendertermination.
(f) The Letter Within the limits of Credit Issuer shall not amend any Letter the obligations of Credit if the Letter of Credit Issuer would not be permitted at such time Issuing Banks set forth above and in Section 3.02, the Borrower may request the Issuing Banks to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, Issue one or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter more Letters of Credit.
(h, reimburse the Issuing Banks for payments made thereunder pursuant to Section 3.04(a) The Letter of Credit Issuer shall act on behalf of and request the Revolving Credit Lenders with respect Issuing Banks to any Issue one or more additional Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in under this Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer3.01.
Appears in 2 contracts
Samples: Credit Agreement (Walt Disney Co/), Credit Agreement (Walt Disney Co/)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthforth in this Agreement, at any time and from time to time after from the Original Closing Date and through the day that is ninety (90) days prior to the L/C Maturity Date, the Issuing Lender shall issue such Letters of Credit as the Borrower may request upon the delivery of a written request in the form of Exhibit I 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 Issuer agreesLiabilities shall not exceed Ten Million and No/100 Dollars ($10,000,000.00), (iii) in reliance upon no event shall the agreements sum of (A) the Revolving Credit Loans Outstanding, (B) the Swing Loans Outstanding and (C) the amount of Letter of Credit Liabilities (after giving effect to all Letters of Credit requested) exceed the Total Commitment, (iv) in no event shall the outstanding principal amount of the Revolving Credit Lenders Loans, Swing Loans and Letter of Credit Liabilities (after giving effect to any requested Letters of Credit) exceed the lesser of the Total Commitment or the Borrowing Base Availability or cause a violation of the covenants set forth in this Section 3§9.1, to issue from time to time from §9.9 or §9.10, (v) the Original Closing Date through the L/C Maturity Date upon the request ofconditions set forth in §§10 and 11 shall have been satisfied, and (vi) 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 direct or indirect benefit ofcontrary contained in this §2.10, the Borrower 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 Restricted SubsidiariesDefaulting 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 letter Lender that such conditions have not been satisfied. Each Letter of credit or letters Credit Request shall be executed by an Authorized Officer of credit (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 eachthe Majority Lenders otherwise consent, a “the term of any Letter of Credit”) in such form as may be approved by Credit shall not exceed a period of time commencing on the issuance of the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than ending one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative subject to extension pursuant to an “evergreen” clause acceptable to Agent and Issuing Lender (but in any event the term shall not extend beyond five (5) Business Days prior to the Maturity Date). The amount available to be drawn under any Letter of Credit Issuer, provided that in no event 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 expiration shorter period as the Issuing Lender may approve) prior to the date occur later than upon which the L/C Maturity Date; requested Letter of Credit is to be issued. Each such Letter of Credit Request shall contain (vi) each a statement as to the purpose for which such Letter of Credit shall be denominated used (which purpose shall be in Dollars accordance with the terms of this Agreement), and (ii) a certification by the chief financial officer or an Alternative Currencychief accounting officer of the Borrower that the Borrower and Guarantors are and will be in compliance with all covenants under the Loan Documents after giving effect to the issuance of such Letter of Credit. The Borrower shall further deliver to the Issuing Lender such additional applications (which application as of the date hereof is in the form of Exhibit M 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 event of any conflict, the terms of this Agreement shall control.
(vic) no The Issuing Lender shall, subject to the conditions set forth in this Agreement, issue the Letter of Credit on or before five (5) Business Days following receipt of the documents last due pursuant to §2.10(b). Each Letter of Credit shall be issued if it would be illegal under any applicable law for in form and substance reasonably satisfactory to the beneficiary Issuing Lender in its reasonable discretion.
(d) Upon the issuance of the Letter of Credit to have a Letter of Credit issued Credit, each Lender shall be deemed to have purchased a participation therein from Issuing Lender in an amount equal to its favor; and (vii) no respective Commitment Percentage of the amount of such Letter of Credit. No Lender’s obligation to participate in a Letter of Credit shall be issued affected by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time other Lender’s failure to perform as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer required herein with respect to such Letter of Credit or any restriction, reserve or capital requirement (for which the other Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;Credit.
(iie) Upon the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial each Letter of Credit, or the Borrower shall pay to the Issuing Lender (i) for its own account, a Letter of Credit fronting fee calculated at the rate per annum equal to one-eighth of one percent (0.125%) per annum (which fee shall not be less than $10,000 or 1,500 in any event) and an administrative charge of $250, and (ii) for the Dollar Equivalent thereof, accounts of the Lenders that are Non-Defaulting Lenders (including the Issuing Lender) in the case accordance with their respective percentage shares of a standby participation in such Letter of Credit;
, a Letter of Credit fee calculated at the rate per annum equal to three percent (iv3.0%) on the amount available to be drawn under such Letter of Credit is denominated Credit. Such fees shall be payable in a currency other than Dollars or an Alternative Currency;
(v) the quarterly installments in arrears with respect to each Letter of Credit Issuer does not as on the first day of each calendar quarter following the issuance date of such requested 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 issue letters Credit. In addition, the Borrower shall pay to Issuing Lender for its own account within five (5) days of credit in demand of Issuing Lender the requested currency;
(vi) such Letter standard issuance, documentation and service charges for Letters of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations issued from time to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit by Issuing Lender.
(f) The In the event that any amount is drawn under a Letter of Credit Issuer by the beneficiary thereof, the Borrower shall not amend any Letter 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 Credit if such drawing and such amount drawn shall be treated as an outstanding Base Rate Loan under this Agreement) and the Letter Agent shall promptly notify each Lender by telex, telecopy, telegram, telephone (confirmed in writing) or other similar means of Credit Issuer would not be permitted at transmission, and each Lender shall promptly and unconditionally pay to the Agent, for the Issuing Lender’s own account, an amount equal to such time to issue Lender’s Commitment Percentage of such Letter of Credit (to the extent of the amount drawn). The Borrower further hereby irrevocably authorizes and directs Agent to notify the Lenders of the Borrower’s intent to convert such Base Rate Loan to a LIBOR Rate Loan with an Interest Period of one (1) month on the third (3rd) Business Day following the funding by the Lenders of their advance under this §2.10(f), provided that the making of such LIBOR Rate Loan shall not be a contravention of any provision of this Agreement. 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 (1.0%) 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 amended form under obligation hereunder to make funds available to the terms hereofAgent pursuant to this §2.10(f).
(g) The If after the issuance of a Letter of Credit Issuer shall 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 no obligation a Letter of Credit and thereafter the Issuing Lender receives any payment on account thereof, then the Issuing Lender will distribute to amend such Lender its participation interest in such amount (appropriately adjusted in the case of interest payments to reflect the period of time during which such Lender’s participation interest was outstanding and funded); provided, however, that in the event that such payment received by the Issuing Lender is required to be returned, such Lender will return to the Issuing Lender any portion thereof previously distributed by the Issuing Lender to it.
(i) The issuance of any supplement, modification, amendment, renewal or extension to or of any Letter of Credit if (A) shall be treated in all respects the Letter same as the issuance of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such a new Letter of Credit.
(hj) The Borrower assumes all risks of the acts, omissions, or misuse of any Letter of Credit Issuer shall act on behalf by the beneficiary thereof. Neither Agent, Issuing Lender nor any Lender will be responsible for (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have 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 the benefits and immunities (A) provided any instrument transferring or assigning or purporting to the Administrative Agent in Section 13 with respect to transfer or assign any acts taken or omissions suffered by the Letter of Credit Issuer or the rights or benefits thereunder or proceeds thereof in connection with Letters of Credit issued by it whole or proposed in part, which may prove to be issued by it and Issuer Documents pertaining to such Letters invalid or ineffective for any reason; (iii) failure of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the any beneficiary of any Letter of Credit Issuer to comply fully with respect the conditions required in order to such acts or demand payment under a Letter of Credit; (iv) errors, omissions, and interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise; (Bv) as additionally provided herein with respect 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 the make a disbursement under a Letter of Credit Issueror 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 Agent or any Lender. None of the foregoing will affect, impair or prevent the vesting of any of the rights or powers granted to Agent, 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 Agent, Issuing Lender or the other Lenders in good faith will be binding on the Borrower and will not put Agent, Issuing Lender or the other Lenders under any resulting liability to the Borrower; provided nothing contained herein shall relieve Issuing Lender for liability to the Borrower arising as a result of the gross negligence or willful misconduct of 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 (Carter Validus Mission Critical REIT, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, of the Borrower and the Restricted Subsidiaries, Subsidiaries a letter of credit or letters of credit in Dollars (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the such time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (viv) each Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or Party, the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.114.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request parties hereto agree that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Existing Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with be deemed Letters of Credit issued for all purposes under this Agreement, without any further action by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerBorrower.
Appears in 2 contracts
Samples: Credit Agreement (Kinder Morgan Holdco LLC), Credit Agreement (Kinder Morgan Inc)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, any Borrower may request a Letter of Credit Issuer at any time and from time to time on or after the Original Closing Date and prior to the L/C date that is 60 Business Days prior to the Maturity DateDate to issue, for the account of such Borrower or any other Credit Party, a “Letter of Credit Obligor”), and subject to and upon the terms and conditions herein set forth, such Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, agrees to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request oftime, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or irrevocable standby letters of credit (the “Letters of Credit” denominated and each, a “Letter of Credit”) payable in Dollars in such form as may be approved by the such Letter of Credit Issuer in its reasonable discretion; provided that and the Borrower shall be Administrative Agent (each such letter of credit (a co-applicant, and jointly and severally liable with respect to, each “Letter of Credit issued for Credit” and collectively, the account “Letters of a Restricted SubsidiaryCredit”).
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued issued, and the Stated Amount of which, when added to the Letters any outstanding Letter of Credit Outstanding at such timeshall not be increased, if after giving effect thereto the Letter of Credit Outstandings would exceed either (x) the Letter of Credit Commitment Amount (y) when added to the aggregate principal amount of all Loans then in effectoutstanding, an amount equal to the Total Commitment at such time; (ii) subject no individual Letter of Credit shall be issued that has an initial Stated Amount less than $100,000 unless such lesser Stated Amount is acceptable to clause the Letter of Credit Issuer; and (fiii) beloweach Letter of Credit shall have an expiry date (including any renewal periods) occurring not later than the earlier of (A) one year from the date of issuance thereof (unless the requesting Borrower and the Letter of Credit Issuer otherwise agree), and (B) 30 Business Days prior to the Maturity Date, in each case on terms acceptable to the Administrative Agent and the relevant Letter of Credit Issuer. In addition, no Letter of Credit shall be issued or increased in amount if after giving effect thereto the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it Borrowers would be illegal under any applicable law for required to prepay Loans in accordance with Section 3.2(b).
(c) Notwithstanding the beneficiary of foregoing, in the Letter of Credit to have event a Letter of Credit issued in its favor; and (vii) Lender Default exists, no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation required to issue any Letter of Credit if:
unless either (i) any ordersuch Letter of Credit Issuer has entered into arrangements satisfactory to it and the requesting Borrower to eliminate such Letter of Credit Issuer’s risk with respect to the participation in Letters of Credit of the Defaulting Lender or Lenders, judgment including by cash collateralizing such Defaulting Lender’s or decree Lenders’ Revolving Facility Percentage of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, Outstandings; or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one Credit, taking into account the potential failure of the Defaulting Lender or more policies of Lenders to risk participate therein, will not cause the Letter of Credit Issuer applicable to letters incur aggregate credit exposure hereunder with respect to Loans and Letter of credit generally;
(iii) except as otherwise agreed by the Administrative Agent Credit Outstandings in excess of its 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 is in an initial Stated Amount less than $100,000 Issuer, not to thereafter incur Loans or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) Outstandings hereunder that would cause the Letter of Credit Issuer does not as of the issuance date of such requested to incur aggregate credit exposure hereunder with respect to Loans and Letter of Credit issue letters Outstandings in excess of credit in the requested currency;its Commitment.
(vid) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) Unless otherwise agreed to by a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with and the Borrower requesting Borrower, the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such Revolving Credit Lender later version thereof as may be in effect at the time of issuance) shall apply to eliminate the each Letter of Credit Issuer’s risk with respect to such Revolving Credit Lenderissued hereunder.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Central Hudson Gas & Electric Corp), Credit Agreement (Ch Energy Group Inc)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request ofof the Parent Borrower, and for the direct or indirect benefit of, the Borrower Borrowers and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Parent Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted SubsidiarySubsidiary that is not a Borrower.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the such time of the issuance thereof to exceed the Total lesser of the Borrowing Base and the Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, ; provided that in no event shall such expiration date occur later than the L/C Maturity Date; (viv) each Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders any Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.114.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Parent Borrower on behalf of the Borrowers shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof100,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative CurrencyDollars;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Parent Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith therewith, and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (HCA Holdings, Inc.), Credit Agreement (HCA Holdings, Inc.)
Letters of Credit. (a) Subject to An Originator may request that the Purchase Price for Receivables sold by such Originator on a Sale Date be paid by the Buyer procuring the issuance of a Letter of Credit by the L/C Issuer. Upon the request of an Originator, and upon on the terms and conditions herein set forthfor issuing Letters of Credit under the ABL Credit Agreement (including any limitations therein on the amount of any such issuance), at any time and from time the Buyer agrees to time after the Original Closing Date and prior submit an L/C Application to the L/C Maturity DateIssuer for the issuance of, on the Letter Sale Dates specified by such Originator, Letters of Credit Issuer agrees, in reliance upon the agreements on behalf of the Revolving Credit Lenders set forth in this Section 3Buyer and, if applicable, on behalf of or for the account of such Originator (or an Affiliate of such Originator that is acceptable to issue from time to time from the Original Closing Date through the L/C Maturity Issuer in the L/C Issuer’s sole discretion) in favor of the beneficiaries specified by such Originator. The aggregate stated amount of the Letters of Credit issued on any Sale Date upon on behalf of such Originator or an Affiliate of such Originator shall constitute a credit against the request ofaggregate Purchase Price otherwise payable by the Buyer to such Originator. To the extent that the aggregate stated amount of the Letters of Credit being issued during the Interest Period (or portion thereof) most recently ended prior to such Payment Date exceeds the aggregate Purchase Price payable by the Buyer to such Originator on such Payment Date, and for such excess shall be deemed to be (i) a reduction in the direct or indirect benefit ofoutstanding principal balance of (and, to the extent necessary, the Borrower accrued but unpaid interest on) the Intercompany Loan payable to such Originator, to the extent the outstanding principal balance (and accrued interest) is greater than such excess and/or (ii) a reduction in the Restricted Subsidiaries, a letter of credit or letters of credit (Purchase Price payable on the “Letters of Credit” and each, a “Letter of Credit”) in Payment Dates immediately following the date any such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided is issued. In the event that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each any such Letter of Credit issued as contemplated under this Section 3.5 expires or is cancelled or otherwise terminated with all or any portion of its stated amount undrawn, or has its stated amount decreased (for a reason other than a drawing having been made thereunder), then an amount equal to such undrawn amount or such reduction, as the account case may be, shall either be paid in cash to such Originator on the next Payment Date or, if the Buyer does not then have cash available therefor, shall be deemed to be added to the outstanding principal balance of a Restricted Subsidiarythe Intercompany Loan payable to such Originator. Under no circumstances shall such Originator (or any Affiliate thereof (other than the Buyer)) have any reimbursement or recourse obligations in respect of any Letter of Credit.
(b) Notwithstanding In the foregoing, (i) no event that an Originator requests that any purchases be paid for by the issuance of a Letter of Credit hereunder, such Originator shall be issued on a timely basis provide the Stated Amount of which, when added Buyer with such information as is necessary for the Buyer to the Letters of Credit Outstanding at obtain such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than from the L/C Maturity Date; Issuer, and shall notify the Buyer, the Servicer and the Administrative Agent of the allocations described in clause (va) above. Such allocations shall be binding on the Buyer and such Originator absent manifest error.
(c) The Originators acknowledge that each Letter of Credit shall be denominated in Dollars subject either to the Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600, and any amendments or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for revisions thereof adhered to by the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit L/C Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event International Standby Practices (ISP98-International Chamber of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable LendersCommerce Publication Number 590), the Borrower shall have the right, on and any day, permanently amendments or revisions thereof adhered to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit L/C Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in issuance, as determined by the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unlessL/C Issuer, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender case subject to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereofand conditions set forth in the ABL Credit Agreement.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Mallinckrodt PLC), Purchase and Sale Agreement (Mallinckrodt PLC)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Facility Maturity Date, the each Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct or indirect benefit of, Holdings, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the such Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, applicant and shall be jointly and severally liable with respect to, to each Letter of Credit issued for the account of Holdings or a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, thereof (except as set forth in Section 3.2(d)); provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent and the applicable Letter of Credit Issuer; (viv) each Letter of Credit shall be denominated in Dollars Dollars, Euro or an Alternative Currency; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one two Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer Issuers (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The No Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) unless otherwise agreed by the Administrative Agent and the applicable Letter of Credit Issuer, such Letter of Credit is denominated in a currency other than Dollars Dollars, Euro or an Alternative Currency;
(v) unless otherwise agreed by the Administrative Agent and the applicable Letter of Credit Issuer, the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower has entered into arrangements satisfactory to the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(fe) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The No Letter of Credit Issuer shall be under no any obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, hereof or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(hf) The Each the Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, omissions and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (PRA Health Sciences, Inc.), Credit Agreement (PRA Health Sciences, Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, at the Issuing Lender agrees to issue letters of credit for the account of Borrowers (each, an "L/C") or to purchase participations or execute indemnities or reimbursement obligations (each such undertaking, an "L/C Undertaking") solely with respect to the Existing Letters of Credit. Notwithstanding anything to the contrary contained herein, in no event shall Issuing Lender or any time and from time other Lender be required to time issue any L/C or L/C Undertaking (or otherwise advance any credit in respect thereof) after the Original Closing Date other than with respect to the Existing Letters of Credit, and once any portion of the LC Obligations has been paid or prepaid it may not be reborrowed. If Issuing Lender is obligated to advance funds under a Letter of Credit, Borrowers immediately shall reimburse such L/C Disbursement to Issuing Lender upon receiving written or telephonic notice of such L/C Disbursement by paying to Agent an amount equal to such L/C Disbursement not later than 11:00 a.m., California time, on the date that such L/C Disbursement is made, provided, that Administrative Borrower has received written or telephonic notice of such L/C Disbursement prior to 10:00 a.m., California time, on such date, or, if such notice has not been received by Administrative Borrower prior to such time on such date, then not later than 11:00 a.m., California time, on the Business Day immediately following the day that Administrative Borrower receives such notice, pursuant to the foregoing, and, in the absence of such reimbursement, the L/C Maturity DateDisbursement immediately and automatically shall be deemed to be an Obligation hereunder (an "LC Obligation" and, collectively, the Letter of Credit Issuer agrees"LC Obligations") and, thereafter, shall bear interest at the rate then applicable to Base Rate Loans under Section 2.6 (subject to conversion to LIBOR Rate Loans in reliance upon accordance with Section 2.13). To the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the extent an L/C Maturity Date upon Disbursement is deemed to be an LC Obligation hereunder, Borrowers' obligation to reimburse such L/C Disbursement shall be discharged and replaced by the request ofresulting LC Obligation. Promptly following receipt by Agent of any payment from Borrowers pursuant to this paragraph, and for Agent shall distribute such payment to the direct or indirect benefit ofIssuing Lender or, to the Borrower extent that Lenders have made payments pursuant to Section 2.12(c) to reimburse the Issuing Lender, then to such Lenders and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form Issuing Lender as their interests may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiaryappear.
(b) Notwithstanding the foregoing, (i) no Letter Promptly following receipt of Credit shall be issued the Stated Amount a notice of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) Disbursement pursuant to Section 2.12(a), each Letter Lender agrees to fund its Pro Rata Share of Credit any LC Obligation deemed made pursuant to the foregoing subsection on the same terms and conditions as if Borrowers had requested such LC Obligation and Agent shall be denominated in Dollars or an Alternative Currency; (vi) no Letter promptly pay to Issuing Lender the amounts so received by it from the Lenders. By the issuance of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by or an amendment to a Letter of Credit Issuer after it has received a written notice from increasing the amount thereof) and without any Credit Party further action on the part of the Issuing Lender or the Administrative Agent Lenders, the Issuing Lender shall be deemed to have granted to each Lender, and each Lender shall be deemed to have purchased, a participation in each Letter of Credit, in an amount equal to its Pro Rata Share of the Risk Participation Liability of such Letter of Credit, and each such Lender agrees to pay to Agent, for the account of the Issuing Lender, such Lender's Pro Rata Share of any payments made by the Issuing Lender under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to Agent, for the account of the Issuing Lender, such Lender's Pro Rata Share of each L/C Disbursement made by the Issuing Lender and not reimbursed by Borrowers on the date due as provided in clause (a) of this Section, or of any reimbursement payment required to be refunded to Borrowers for any reason. Each Lender acknowledges and agrees that its obligation to deliver to Agent, for the Required Revolving Credit Lenders stating that a Default account of the Issuing Lender, an amount equal to its respective Pro Rata Share of each L/C Disbursement made by the Issuing Lender pursuant to this Section 2.12(b) shall be absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default has occurred and is continuing until or Default or the failure to satisfy any condition set forth in Section 3 hereof. If any such time as Lender fails to make available to Agent the amount of such Lender's Pro Rata Share of each L/C Disbursement made by the Issuing Lender in respect of such Letter of Credit Issuer as provided in this Section, such Lender shall have received be deemed to be a written notice Defaulting Lender and Agent (for the account of (xthe Issuing Lender) rescission of shall be entitled to recover such notice amount on demand from such Lender together with interest thereon at the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default Defaulting Lender Rate until paid in accordance with the provisions of Section 13.1full.
(c) Upon at least one Business Day’s prior written notice (Each Borrower hereby agrees to indemnify, save, defend, and hold the Lender Group harmless from any loss, cost, expense, or telephonic notice promptly confirmed liability, and reasonable attorneys fees incurred by the Lender Group arising out of or in writing) connection with any Letter of Credit; provided, however, that no Borrower shall be obligated hereunder to indemnify for any loss, cost, expense, or liability to the Administrative Agent extent that it is caused by the gross negligence or willful misconduct of the Issuing Lender or any other member of the Lender Group. Each Borrower agrees to be bound by the Underlying Issuer's regulations and interpretations of any Underlying Letter of Credit or by Issuing Lender's interpretations of any L/C issued by Issuing Lender to or for such Borrower's account, even though this interpretation may be different from such Borrower's own, and each Borrower understands and agrees that the Lender Group shall not be liable for any error, negligence, or mistake, whether of omission or commission, in following Borrowers' instructions or those contained in the Letter of Credit or any modifications, amendments, or supplements thereto. Each Borrower understands that the L/C Undertakings may require Issuing Lender to indemnify the Underlying Issuer for certain costs or liabilities arising out of claims by Borrowers against such Underlying Issuer. Each Borrower hereby agrees to indemnify, save, defend, and hold the Lender Group harmless with respect to any loss, cost, expense (which the Administrative Agent shall promptly notify the applicable Lendersincluding reasonable attorneys fees), or liability incurred by the Lender Group under any L/C Undertaking as a result of the Lender Group's indemnification of any Underlying Issuer; provided, however, that no Borrower shall have be obligated hereunder to indemnify for any loss, cost, expense, or liability to the rightextent that it is caused by the gross negligence or willful misconduct of the Issuing Lender or any other member of the Lender Group. Each Borrower hereby acknowledges and agrees that neither the Lender Group nor the Issuing Lender shall be responsible for delays, on errors, or omissions resulting from the malfunction of equipment in connection with any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit CommitmentCredit.
(d) [Reserved]Each Borrower hereby authorizes and directs any Underlying Issuer to deliver to the Issuing Lender all instruments, documents, and other writings and property received by such Underlying Issuer pursuant to such Underlying Letter of Credit and to accept and rely upon the Issuing Lender's instructions with respect to all matters arising in connection with such Underlying Letter of Credit and the related application.
(e) The Any and all issuance charges, commissions, fees, and costs incurred by the Issuing Lender relating to Underlying Letters of Credit shall be Lender Group Expenses for purposes of this Agreement and immediately shall be reimbursable by Borrowers to Agent for the account of the Issuing Lender; it being acknowledged and agreed by each Borrower that, as of the Closing Date, the issuance charge imposed by the prospective Underlying Issuer is .825% per annum times the face amount of each Underlying Letter of Credit Credit, that such issuance charge may be changed from time to time, and that the Underlying Issuer shall not be under any obligation to issue any Letter also imposes a schedule of Credit if:charges for amendments, extensions, drawings, and renewals.
(f) If by reason of (i) any orderchange after the Closing Date in any applicable law, judgment treaty, rule, or decree of regulation or any change in the interpretation or application thereof by any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of CreditAuthority, or any law applicable to (ii) compliance by the Letter of Credit Underlying Issuer or the Lender Group with any request direction, request, or directive requirement (irrespective of whether or not having the force of law) from of any Governmental Authority with jurisdiction over or monetary authority including, Regulation D of the Federal Reserve Board as from time to time in effect (and any successor thereto):
(i) any reserve, deposit, or similar requirement is or shall be imposed or modified in respect of any Letter of Credit Issuer shall prohibitissued hereunder, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;or
(ii) there shall be imposed on the issuance of such Underlying Issuer or the Lender Group any other condition regarding any Underlying Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if issued pursuant hereto; and the Letter result of Credit Issuer would not be permitted at such time the foregoing is to issue such Letter increase, directly or indirectly, the cost to the Lender Group of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend issuing, making, guaranteeing, or maintaining any Letter of Credit if (A) or to reduce the Letter of Credit Issuer would have no obligation amount receivable in respect thereof by the Lender Group, then, and in any such case, Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify Administrative Borrower, and Borrowers shall pay on demand such time amounts as Agent may specify to issue be necessary to compensate the Lender Group for such Letter of Credit in its amended form under additional cost or reduced receipt, together with interest on such amount from the terms hereof, or (B) the beneficiary date of such Letter demand until payment in full thereof at the rate then applicable to Base Rate Loans hereunder. The determination by Agent of Credit does not accept any amount due pursuant to this Section, as set forth in a certificate setting forth the proposed amendment to such Letter calculation thereof in reasonable detail, shall, in the absence of Credit.
(h) The Letter of Credit Issuer shall act manifest or demonstrable error, be final and conclusive and binding on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuerparties hereto.
Appears in 2 contracts
Samples: Credit Agreement (Altra Industrial Motion, Inc.), Credit Agreement (TB Wood's INC)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (First Data Corp), Joinder Agreement (First Data Corp)
Letters of Credit. (a) Subject to and In addition, upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior subject to the L/C Maturity Dateconditions of this Agreement, the Letter of Credit Issuer agrees, and in reliance upon the agreements representations, warranties and covenants of the Borrower made herein, the Lender agrees to issue, to the extent permitted by law and 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 and for the account of the Borrower, during the period from the Closing Date to 30 days prior to the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretionDate; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter Stated Amount of Letters of Credit issued for outstanding at any time, plus the account aggregate amount of a Restricted Subsidiary.
(b) Notwithstanding the foregoingall unreimbursed draws under such outstanding Letters of Credit, shall not at any time (i) no Letter of Credit shall be issued exceed $5,000,000 in the Stated Amount of whichaggregate, or (ii) when added to the Letters then outstanding amount of Credit Outstanding Revolving Loans at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures and provided, further that at the time of the Borrower requests the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter after giving effect to the issuance thereof, there has not occurred and is not continuing a Default or an Event of 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 Lender and shall bear interest at the rate then applicable to Revolving Loans that are Base Rate Loans, and, if not paid forthwith, shall, at the option of the Lender, be issued by a Letter added to the Loan Account as Revolving Loans and shall be immediately due and payable upon the Revolving Credit Maturity Date (or, if earlier, upon acceleration of the Loans). In addition, all Letters of Credit Issuer after it has received shall, unless the Lender otherwise agrees in writing, have a written notice from stated expiration date not to exceed one year and shall, in any Credit Party or event, expire not later than 15 days prior to the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event Maturity Date. In order to evidence such Letters of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders)Credit, the Borrower shall have enter into, with the rightLender, on any daysuch agreements and execute such customary instruments and documents as the Lender reasonably requires, permanently to terminate or reduce the Letter of Credit Commitment in whole or in partincluding, provided thatbut not limited to, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters a letter of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date application and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lenderagreement.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Open Link Financial, Inc.), Revolving Credit and Term Loan Agreement (Open Link Financial, Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthforth in this Agreement, at any time and from time to time after through the Original Closing Date and day that is thirty (30) days prior to the L/C Revolving Credit Maturity Date, the Issuing Lender shall issue such Letters of Credit denominated in Dollars as the Borrower may request upon the delivery of a written request in the form of Exhibit E hereto (a “Letter of Credit Request”) to the Issuing Lender, together with a Compliance Certificate calculated on a pro forma basis; 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 Issuer agreesLiabilities shall not exceed Thirty Million Dollars ($30,000,000) (the “Letter of Credit Sublimit”), (iii) after giving effect to any requested Letters of Credit, in reliance upon no event shall the agreements outstanding principal amount of the Revolving Credit Lenders Exposure exceed the Total Revolving Commitment or cause a violation of the covenants set forth in §9 nor shall the Total Exposure exceed the Facility Cap, (iv) the conditions set forth in §§10 and 11 shall have been satisfied (or if such condition is required to have been satisfied only as of the Closing Date, that such condition was satisfied as of the Closing Date) or waived by Agent, (v) no Revolving Credit Lender is a Defaulting Lender (provided Issuing Lender may, in its sole discretion, be entitled to waive this Section 3condition), unless the Issuing Lender has entered into arrangements, including the delivery of Cash Collateral, satisfactory to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, Issuing Lender (in its sole discretion) with the Borrower and or such Defaulting Lender to eliminate the Restricted Subsidiaries, a letter of credit Issuing Lender’s actual or letters of credit (potential Fronting Exposure with respect to the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by Defaulting Lender arising from either the Letter of Credit Issuer in its reasonable discretion; provided then proposed to be issued or that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued and all other Letter of Credit Liabilities as to which the Issuing Lender has actual or potential Fronting Exposure, as it may elect in its sole discretion, and (vi) 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. The Issuing Lender may assume that the account conditions in §10 and §11 have been satisfied unless it receives written notice from a Revolving Credit Lender that such conditions have not been satisfied. Each Letter of Credit Request shall be executed by an Authorized Officer of Borrower. The Issuing Lender shall be entitled to conclusively rely on such Person’s authority to request a Restricted Subsidiary.
(b) Notwithstanding Letter of Credit on behalf of Borrower. The Issuing Lender shall have no duty to verify the foregoingauthenticity 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 Revolving Credit Lenders constituting the Revolving Class Lenders otherwise consent, (i) no the term of any Letter of Credit shall be issued not exceed a period of time commencing on the Stated Amount issuance of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than and ending one year after the date of issuance thereof, subject to extension pursuant to an “evergreen” clause reasonably acceptable to Agent and Issuing Lender (but in any event the term shall not extend beyond thirty (30) days prior to the Revolving Credit Maturity Date) unless otherwise agreed upon approved by the Administrative Issuing Lender in its sole discretion and the Borrower has provided to Agent and Cash Collateral reasonably acceptable to the Agent in an amount equal to the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than Liability with respect to any Letter of Credit which extends beyond thirty (30) days prior to the L/C 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 Revolving Commitment as a Revolving Credit Loan.
(vb) each 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 denominated used (which purpose shall be in Dollars accordance with the terms of this Agreement), and (ii) a certification by an Authorized Officer or an Alternative Currencythe chief financial or chief accounting officer of Borrower that the Borrower is 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 I attached hereto) and documents as the Issuing Lender may reasonably require, in conformity with the then standard practices of its letter of credit department applicable to all or substantially all similarly situated borrowers, in connection with the issuance of such Letter of Credit; provided that in the event of any conflict, the terms of this Agreement shall control.
(vic) no The Issuing Lender shall, subject to the conditions set forth in this Agreement, issue the Letter of Credit on or before five (5) Business Days following receipt of the documents last due pursuant to §2.11(b). Each Letter of Credit shall be issued if it would be illegal under any applicable law for in form and substance reasonably satisfactory to the beneficiary Issuing Lender in its reasonable discretion.
(d) Upon the issuance of the Letter of Credit to have a Letter of Credit, each Revolving Credit issued Lender shall be deemed to have purchased a participation therein from Issuing Lender in an amount equal to its favor; and (vii) no respective Revolving Credit Commitment Percentage of the amount of such Letter of Credit. No Revolving Credit Lender’s obligation to participate in a Letter of Credit shall be issued affected by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required other Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time Lender’s failure to perform as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer required herein with respect to such Letter of Credit or any restrictionother Letter of Credit.
(e) Upon the issuance of each Letter of Credit, reserve or capital requirement the Borrower shall pay to the Issuing Lender (i) for which the its own account, a Letter of Credit Issuer is not otherwise compensated hereunderfronting fee with respect to each Letter of Credit, at a rate equal to the greater of (a) not in effect a quarterly fee of one hundred twenty five thousandths percent (0.125%) per annum, computed on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material face amount available to it;
(ii) the issuance of be drawn under such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or (b) $10,000 or 500.00, and (ii) for the Dollar Equivalent thereof, accounts of the Revolving Credit Lenders (including the Issuing Lender) in the case accordance with their respective percentage shares of a standby participation in such Letter of Credit;
(iv) , a Letter of Credit fee calculated at the rate per annum equal to the Applicable Margin then applicable to Revolving Credit LIBOR Rate Loans on the amount available to be drawn under such Letter of Credit is denominated Credit. Such fees shall be payable in a currency other than Dollars or an Alternative Currency;
(v) the quarterly installments in arrears with respect to each Letter of Credit Issuer does not as on the fifth day of each calendar quarter following the issuance date of such requested issuance and continuing on each quarter or portion thereof thereafter, as applicable, or on any earlier date on which the Revolving Credit Commitments shall terminate and on the expiration or return of any Letter of Credit issue letters (if such letter of credit in is outstanding less than a full quarter, such fee shall be pro-rated for the requested currency;
period of time outstanding). In addition, the Borrower shall pay to Issuing Lender for its own account within ten (vi10) such Letter Business Days of demand of Issuing Lender the standard issuance, documentation and service charges applicable to all or substantially all similarly situated borrowers for Letters of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations issued from time to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit by Issuing Lender.
(f) The In the event that any amount is drawn under a Letter of Credit Issuer by the beneficiary thereof, unless the amount of such draw is otherwise immediately repaid by the Borrower, the Borrower shall not amend any Letter reimburse the Issuing Lender by having such amount drawn treated as an outstanding Revolving Credit Base Rate Loan under this Agreement (Borrower being deemed to have requested a Revolving Credit 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 Revolving Credit if Base Rate Loan under this Agreement) and the Letter Agent shall promptly notify each Revolving Credit Lender by telex, telecopy, telephone (confirmed in writing) or other similar means of transmission, and each Revolving Credit Issuer would not be permitted at Lender shall promptly and unconditionally pay to the Agent, for the Issuing Lender’s own account, an amount in Dollars equal to such time to issue Revolving Credit Lender’s Revolving Credit Commitment Percentage of such Letter of Credit (to the extent of the amount drawn). Borrower further hereby irrevocably authorizes and directs Agent to notify the Revolving Credit Lenders of Borrower’s intent to convert such Revolving Credit Base Rate Loan to a Revolving Credit LIBOR Rate Loan with an Interest Period of one (1) month on the third (3rd) Business Day following the funding by the Revolving Credit Lenders of their advance under this §2.11(f), provided that the making of such Revolving Credit LIBOR Rate Loan shall not be a contravention of any provision of this Agreement. If and to the extent any Revolving Credit Lender shall not make such amount available on the Business Day on which such draw is funded, such Revolving Credit 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 (1.0%) for each day thereafter. Further, such Revolving Credit 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 Revolving Credit Lender was required to fund pursuant to this §2.11(f) until such amount has been funded (as a result of such assignment or otherwise). The failure of any Revolving Credit Lender to make funds available to the Agent in such amount shall not relieve any other Revolving Credit Lender of its amended form under obligation hereunder to make funds available to the terms hereofAgent pursuant to this §2.11(f).
(g) The If after the issuance of a Letter of Credit Issuer shall pursuant to §2.11(c) by the Issuing Lender, but prior to the funding of any portion thereof by a Revolving Credit Lender, for any reason a drawing under a Letter of Credit cannot be refinanced as a Revolving Credit Loan, each Revolving Credit Lender will, on the date such Revolving Credit Loan pursuant to §2.11(f) was to have been made, purchase an undivided participation interest in the Letter of Credit in an amount equal to its Revolving Credit Commitment Percentage of the amount of such Letter of Credit. Each Revolving Credit 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 Revolving Credit 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 Revolving Credit Lender any such Revolving Credit Lender’s payment of funds under no obligation a Letter of Credit and thereafter the Issuing Lender receives any payment on account thereof, then the Issuing Lender will distribute to amend such Revolving Credit Lender its participation interest in such amount (appropriately adjusted in the case of interest payments to reflect the period of time during which such Revolving Credit Lender’s participation interest was outstanding and funded); provided, however, that in the event that such payment received by the Issuing Lender is required to be returned, such Revolving Credit 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 if (A) shall be treated in all respects the Letter same as the issuance of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such a new Letter of Credit.
(hj) The Borrower assumes all risks of the acts, omissions, or misuse of any Letter of Credit Issuer shall act on behalf by the beneficiary thereof. Neither Agent, Issuing Lender nor any Lender will be responsible for (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have 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 the benefits and immunities (A) provided any instrument transferring or assigning or purporting to the Administrative Agent in Section 13 with respect to transfer or assign any acts taken or omissions suffered by the Letter of Credit Issuer or the rights or benefits thereunder or proceeds thereof in connection with Letters of Credit issued by it whole or proposed in part, which may prove to be issued by it and Issuer Documents pertaining to such Letters invalid or ineffective for any reason; (iii) failure of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the any beneficiary of any Letter of Credit Issuer to comply fully with respect the conditions required in order to such acts or demand payment under a Letter of Credit; (iv) errors, omissions, and interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise; (Bv) as additionally provided herein with respect 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 the make a disbursement under a Letter of Credit Issueror 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 Agent or any Lender, none of the foregoing will affect, impair or prevent the vesting of any of the rights or powers granted to Agent, 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 Agent, Issuing Lender or the other Lenders in good faith will be binding on Borrower and will not put Agent, Issuing Lender or the other Lenders under any resulting liability to Borrower; provided nothing contained herein shall relieve Issuing Lender, Agent or any Lender for liability to Borrower arising as a result of the gross negligence or willful misconduct of Issuing Lender, Agent or any Lender as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods.
Appears in 2 contracts
Samples: Credit Agreement (Plymouth Industrial REIT, Inc.), Credit Agreement (Plymouth Industrial REIT Inc.)
Letters of Credit. (ai) Subject to Drawings shall mature and upon the terms become due and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request ofpayable, and for the direct or indirect benefit of, shall be repaid by the Borrower and in full on the Restricted Subsidiaries, a letter of credit or letters of credit (date such Drawing is disbursed. The Borrower agrees to reimburse the “Letters of Credit” and each, a “Letter of Credit”) in Issuing Bank on each such form as may be approved date for all amounts paid by the Letter of Credit Issuer Issuing Bank for (x) all Drawings disbursed; and (y) any Taxes, charges or other costs or expenses incurred by the Issuing Bank in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable connection with respect to, each Letter of Credit issued for the account of a Restricted Subsidiarysuch payment.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent The Issuing Bank shall promptly notify (A) the applicable Lenders)Borrower, the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter Agent and each Bank of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters its receipt of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any a Drawing request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restrictionCredit, reserve or capital requirement stating the date and amount of the Drawing requested and (for which B) the Letter Borrower of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Datedate and amount of each Drawing made pursuant to such request. The Issuing Bank's failure to give, or delay in giving, any such notice shall impose upon not release or diminish the Letter obligations hereunder of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date Borrower and which the Letter of Credit Issuer each Bank in good xxxxx xxxxx material to it;
(ii) the issuance respect of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;Drawing.
(iii) except as otherwise agreed by If the Administrative Agent and Borrower fails to pay to the Issuing Bank in full the principal amount of, together with interest accrued on, a Drawing in accordance with Section 1.04(b)(ii), each other Bank shall pay to the Issuing Bank, upon demand, its Percentage Interest of such unpaid amount, in Dollars in funds immediately available to the Issuing Bank at the Issuing Bank's Office on, if such demand is made not later than 1:00 p.m. on such Business Day, and, if not, the next Business Day, together with interest on such amount from the date of such Drawing until such amount is paid in full at, for the first three days, the Federal Funds Rate and, thereafter, the Base Rate. Upon, but only upon, making such required payment to the Issuing Bank, a Bank shall be entitled to receive its Percentage Interest of the Unreimbursed Letter of Credit IssuerObligations together with interest accrued thereon, and, until such Letter payment in full by such Bank, the Issuing Bank shall hold such Bank's Percentage Interest as collateral for such payment.
(iv) The obligation of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereofBorrower and each Bank under this Section 1.04, in the case of the Borrower, to reimburse the Issuing Bank for, and in the case of such Bank, to fund its Percentage Interest in the Unreimbursed Letter of Credit Obligations together with interest thereon shall be absolute and unconditional under any and all circumstances and irrespective of:
(A) any setoff, counterclaim or defense to payments which the Borrower or such Bank may at any time have against the Issuing Bank based on (1) any lack of validity or enforceability of this Agreement or any of the other Loan Documents; (2) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (3) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or (4) the occurrence of any Default; and
(B) the existence of any claim, setoff, other defense or other right which the Borrower or such Bank may have at any time against a commercial beneficiary named in a Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case any transferee of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if (or any Person for whom any such transferee may be acting), the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit Agent, the Issuing Bank, any other Bank or any other Person, whether in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend connection with any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereofCredit, any Loan Document, or the transactions contemplated therein, or any unrelated transactions (B) including any underlying transaction between the Borrower and the beneficiary of such Letter of Credit does not accept the proposed amendment to named in any such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf ). In furtherance and not in limitation of the Revolving Credit Lenders with respect foregoing, the Issuing Bank may accept documents that appear on their face to be in order without responsibility for further investigation, regardless of any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided notice or information to the Administrative Agent in Section 13 with respect to any acts taken contrary and not thereby constituting gross negligence, willful misconduct or omissions suffered by the Letter a knowing violation of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerApplicable Law.
Appears in 2 contracts
Samples: 364 Day Revolving Credit Facility (Trigen Energy Corp), Revolving Credit Facility (Trigen Energy Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthhereof, at the Issuing Lender agrees to issue, amend, renew or extend Letters of Credit denominated in Dollars during the Commitment Period (i) in a minimum amount of $10,000 on the date of such issuance, amendment, renewal or extension and (ii) for the account of the Account Party on any time and Business Day during the Commitment Period in such forms as may be approved from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretionIssuing Lender; provided that the Borrower Issuing Lender shall be a co-applicantnot issue, and jointly and severally liable with respect toamend, each renew or extend any Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoingif, after giving effect to such issuance, amendment, renewal or extension, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding Amount at such time, would exceed the Letter of Credit Commitment then in effect; at such time or (ii) subject to clause (f) below, no the Account Balance would be less than 103% of the Outstanding Amount at such time. Each Letter of Credit shall (i) be issued denominated in Dollars, and (ii) expire on the Stated Amount earlier of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iiix) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereofand (y) the last day of the Commitment Period; provided that any Letter of Credit with a one year term may provide for the renewal thereof for additional one year periods (which shall in no event extend beyond the date referred to in clause (y) above).
(b) Any Letter of Credit, unless which by its terms is automatically renewable for a given period of time will provide that notice from the Issuing Lender may be given to the beneficiary thereof that such Letter of Credit will not be renewed at its maturity upon, at Issuing Lender’s discretion, 60 days prior written notice. On the Outside Date, the Account Party shall pay in cash all Obligations that are then due and payable and, if any obligations under any Letter of Credit, whether or not then due and payable, are outstanding on such date, the Account Party will cause all such Letters of Credit to either be (i) cancelled and returned on or prior to the Outside Date or (ii) cash collateralized or otherwise agreed backstopped in a manner satisfactory to the Issuing Lender in its reasonable discretion.
(c) The Account Party shall have the right, upon by not less than three Business Days’ notice to the Administrative Agent and Issuing Lender, to terminate the Letter of Credit IssuerCommitment or, provided that in no event shall such expiration date occur later than from time to time, to reduce the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary aggregate amount of the Letter of Credit to have a Letter Commitment; provided that no such termination or reduction of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided thatshall be permitted if, after giving effect to thereto, (i) the Account Balance would be less than 103% of the Outstanding Amount at such termination time or reduction, (ii) the Letters of Credit Outstanding shall not Stated Amount would exceed the Letter of Credit Commitment. Any such reduction shall be in a minimum amount equal to $500,000, or any whole multiple of $1,000,000 in excess thereof, and shall reduce permanently the Letter of Credit Commitment then in effect.
(d) [Reserved]Letters of Credit shall be used solely to fund the working capital needs and general corporate purposes of the Account Party and its Subsidiaries (including, without limitation, to support any interest rate, currency, commodity or other hedging agreements or other derivative obligations of such Persons).
(e) The Letter of Credit Issuer Issuing Lender shall not at any time be under any obligation obligated to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing hereunder if such Letter of Creditissuance would conflict with, or any law applicable to cause the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Issuing Lender to eliminate the Letter exceed any limits imposed by, any applicable Requirement of Credit Issuer’s risk with respect to such Revolving Credit LenderLaw.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Letter of Credit Reimbursement and Collateral Agreement (Dynegy Inc.), Letter of Credit Reimbursement and Collateral Agreement (Dynegy Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct account of the Borrowers (or, so long as the Borrowers are the primary obligor, for the account of Holdings or indirect benefit of, any Restricted Subsidiary (other than the Borrower and the Restricted Subsidiaries, a letter of credit or Borrowers)) letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effecteffect (or with respect to any Letter of Credit Issuer, exceed such Letter of Credit Issuer’s Letter of Credit Commitment); (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerthereof (except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, the Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized or backstopped (in the case of a backstop only, on terms reasonably satisfactory to such Letter of Credit Issuer), the Revolving Credit Lenders; (viv) each the Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one two Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower Borrowers shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment (or with respect to a Letter of Credit Issuer, the Letters of Credit outstanding with respect to Letters of Credit issued by such Letter of Credit Issuer shall not exceed such Letter of Credit Issuer’s Letter of Credit Commitment).
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof50,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative CurrencyDollars;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrowers have entered into arrangements reasonably satisfactory to the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderLender or such risk has been reallocated in accordance with Section 2.16.
(fe) The Letter of Credit Issuer shall not amend increase the Stated Amount of any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(gf) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(hg) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (GoDaddy Inc.), Eighth Amendment Agreement (GoDaddy Inc.)
Letters of Credit. (a) Pursuant to the Existing DIP Agreement, prior to the Closing Date, the Fronting Bank issued the DIP Letters of Credit which shall be deemed to be Letters of Credit issued under this Agreement for all purposes hereunder and under the Loan Documents; provided that nothing in this Section 2.7(a) shall extend, modify or otherwise affect the existing expiration date of any such DIP Letters of Credit. Subject to and upon the terms and conditions herein set forthhereof, at any time and the Borrower may request the Fronting Bank, from time to time after during the Original Closing Date Revolving Commitment Period, to issue, and prior subject to the L/C Maturity Dateterms and conditions contained herein, the Letter of Credit Issuer Fronting Bank agrees, in reliance upon on the agreements of the Revolving Credit other Lenders set forth in this Section 32.7(e), to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request ofissue, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoingBorrower, one or more Letters of Credit; provided that (i) no Letter of Credit shall be issued the Stated Amount of whichif after giving effect to such issuance, when added to the Letters of Credit Outstanding at such time, would exceed (A) the Letter of Credit Outstandings would exceed the L/C Commitment then in effector (B) the Aggregate Revolving Outstandings would exceed the Total Revolving Commitment; and (ii) subject to clause (f) below, no Letter of Credit shall be issued if the Stated Amount Fronting Bank shall have received notice from the Administrative Agent, the Sub-Agent or the Required Lenders (and a copy of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency such notice shall be issued delivered to the Stated Amount of which would cause Borrower) that the Aggregate Multicurrency Exposures at the time of the conditions to such issuance thereof to exceed the Multicurrency Sublimit then in effect; have not been met.
(ivb) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Each Letter of Credit shall be denominated in Dollars or an Alternative CurrencyCurrency and expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five (5) Business Days prior to the Stated Maturity; provided that any Letter of Credit with a one year term may provide for the renewal thereof for additional one year periods (viwhich, in no event, shall extend beyond the date described in the foregoing clause (y)); provided, further, that if the Termination Date occurs prior to the expiration of any Letter of Credit, and provisions satisfactory to the Fronting Bank for the treatment of such Letter of Credit as a letter of credit under a successor credit facility have not been agreed upon, the Borrower shall, on or prior to the Termination Date, cause all such Letters of Credit to be replaced and returned to the Fronting Bank undrawn and marked “cancelled” or to the extent that the Borrower is unable to so replace and return any Letter(s) no of Credit, such Letter(s) of Credit shall be secured by a “back to back” letter of credit satisfactory to the Fronting Bank, or cash collateralized in an amount equal to 105% of the face amount of such Letter(s) of Credit by the deposit by the Borrower of cash in such percentage amount into the L/C Cash Collateral Account. Such cash shall be remitted to the Borrower upon the expiration, cancellation or other termination or satisfaction of all Obligations hereunder.
(c) Each Letter of Credit shall be issued if it would be illegal under any applicable law for subject to the beneficiary ISP and, to the extent not inconsistent therewith, the laws of the state under whose laws each Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time issued, as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding applicable. The Fronting Bank shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not at any time be under any obligation obligated to issue any Letter of Credit if:hereunder if such issuance would conflict with, or cause the Fronting Bank or any Lender to exceed any limits imposed by, any applicable Requirement of Law. The Borrower shall pay to the Fronting Bank, in addition to such other fees and charges as are specifically provided for in Section 2.25, such fees and charges in connection with the issuance, amendment and processing of the Letters of Credit issued by the Fronting Bank as are customarily imposed by the Fronting Bank from time to time in connection with similar letter of credit transactions.
(d) If any drawing shall be presented for payment under any Letter of Credit (which shall be pursuant to a sight drawing), the Fronting Bank shall promptly notify the Borrower of the date and amount thereof. Drawings paid under each Letter of Credit shall be reimbursed by the Borrower not later than the date a drawing is paid (or the next Business Day if the Borrower receives notice of such drawing after 12:00 noon, New York City time) in immediately available funds in an amount equal to (i) any orderif such draft shall be paid in Dollars, judgment the amount so paid or decree (ii) if such draft shall be paid in an Alternative Currency, the Dollar Equivalent thereof using the Exchange Rate at the time such draft is so paid, on the date that the drawing is paid and shall bear interest from the date the drawing is paid until the drawing is reimbursed in full at a rate per annum equal to the Base Rate plus Applicable Margin for Revolving Loans; it being understood that no interest shall accrue to the extent the Fronting Bank receives payment prior to 2:00 p.m., New York City time, on the date the drawing is paid. The Borrower shall effect such reimbursement (x) if such draw occurs prior to the Termination Date, in cash or through a Borrowing of Base Rate Loans without the satisfaction of the conditions precedent set forth in Section 4.2 and which Borrowing shall be effected without the need for a request therefor from the Borrower or (y) if such draw occurs on or after the Termination Date, in cash. Each Lender agrees to make the Loans described in clause (x) of the preceding sentence notwithstanding a failure to satisfy the conditions precedent set forth in Section 4.2.
(e) Immediately upon the issuance of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer by the Fronting Bank, the Fronting Bank shall be deemed to have sold to each Lender other than the Fronting Bank, and each such other Lender shall be deemed unconditionally and irrevocably to have purchased from issuing the Fronting Bank, without recourse or warranty, an undivided interest and participation, to the extent of such Lender’s Revolving Commitment Percentage, in such Letter of Credit, or each drawing thereunder and the obligations of the Loan Parties under this Agreement with respect thereto. Upon any law applicable change in the Revolving Commitments pursuant to the Section 9.6, it is hereby agreed that with respect to all Letter of Credit Issuer or any request or directive (whether or not having Outstandings, there shall be an automatic adjustment to the force of law) from any Governmental Authority with jurisdiction over participations hereby created to reflect the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies new Revolving Commitment Percentages of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed assigning and assignee Lenders. Any action taken or omitted by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is Fronting Bank under or in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of connection with a commercial Letter of Credit, if taken or $10,000 or the Dollar Equivalent thereof, omitted in the case absence of gross negligence or willful misconduct as determined in a final and non-appealable decision of a standby Letter court of Credit;
(iv) such Letter of Credit is denominated in a currency competent jurisdiction, shall not create for the Fronting Bank any resulting liability to any other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend In the event that the Fronting Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to the Fronting Bank pursuant to Section 2.7(d), the Fronting Bank shall promptly notify the Administrative Agent and the Sub-Agent, and the Sub-Agent shall promptly notify each Lender of such failure, and each Lender shall promptly and unconditionally pay to the Fronting Bank the amount of such Lender’s Revolving Commitment Percentage of (i) the amount of such draft, or any part thereof, that is paid in Dollars and is not so reimbursed or (ii) the Dollar Equivalent, using the Exchange Rate at the time such draft is paid, of the amount of such draft, or any part thereof, that is paid in an Alternative Currency and is not so reimbursed. If the Fronting Bank so notifies the Administrative Agent and the Sub-Agent, and the Sub-Agent so notifies the Lenders prior to 11:00 A.M., New York City time, on any Business Day, each Lender shall make available to the Fronting Bank such Lender’s Revolving Commitment Percentage of the amount of such payment on such Business Day in same day funds and if the Letter of Credit Issuer would not be permitted at such notice is received after such time period, each Lender shall make such payment on the next succeeding Business Day in same day funds). If and to issue the extent any such Letter Lender shall not have so made its Revolving Commitment Percentage of Credit the amount of such payment available to the Fronting Bank, such Lender agrees to pay to the Fronting Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Fronting Bank at a rate equal to the effective rate for overnight funds in New York as reported by the Federal Reserve Bank of New York for such day (or, if such day is not a Business Day, the next preceding Business Day). The failure of any Lender to make available to the Fronting Bank its amended form Revolving Commitment Percentage of any payment under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) shall not relieve any other Lender of its obligation hereunder to make available to the Fronting Bank its Revolving Commitment Percentage of any payment under any Letter of Credit Issuer would have on the date required, as specified above, but no Lender shall be responsible for the failure of any other Lender to make available to the Fronting Bank such other Lender’s Revolving Commitment Percentage of any such payment. Whenever the Fronting Bank receives a payment of a reimbursement obligation at such time as to issue such Letter of Credit which it has received any payments from the Lenders pursuant to this paragraph, the Fronting Bank shall pay to each Lender which has paid its Revolving Commitment Percentage thereof, in its amended form under the terms hereofsame day funds, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment an amount equal to such Letter of CreditLender’s Revolving Commitment Percentage thereof.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Calpine Corp), Credit Agreement (Calpine Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Each Letter of Credit shall be issued (or the Stated Amount stated maturity thereof extended or terms thereof modified or amended) for the account of whichthe Company, when added Enterprises or a Subsidiary of Enterprises (in which case each Borrower and such Subsidiary shall be co-applicants with respect to such Letter of Credit) on not less than three (3) Business Days' prior written notice thereof to the Letters Administrative Agent (which shall promptly distribute copies thereof to the Lenders) and the relevant Issuing Bank and shall be denominated in Dollars or in an Alternative Currency. Each such notice (a "REQUEST FOR ISSUANCE") shall be delivered no later than 12:00 noon (New York City time) on the third Business Day prior to the proposed date of Credit Outstanding at issuance, extension, modification or amendment and shall specify (i) the date (which shall be a Business Day) of issuance of such time, would exceed the Letter of Credit Commitment then in effect; (iior the date of effectiveness of such extension, modification or amendment) subject to clause and the stated expiry date thereof (f) below, no Letter of Credit which shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than the earlier of the date that is five (5) Business Days (or, in the case of any commercial Letter of Credit, thirty (30) Business Days) prior to the Commitment Termination Date and the date which is one year after the requested date of issuance thereofissuance, provided that any Letter of Credit with a one year tenor may provide for the renewal thereof for additional periods of up to one year which shall in no event extend beyond the date which is five (5) Business Days (or, in the case of any commercial Letter of Credit, thirty (30) Business Days) prior to the Commitment Termination Date), (ii) the proposed stated amount of such Letter of Credit (which shall not be less than $100,000 (or the Dollar Equivalent thereof in an Alternative Currency) unless otherwise agreed upon by the Administrative Agent and applicable Issuing Bank), (iii) the Letter of Credit Issuer, provided that currency in no event shall which such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in (which currency shall be Dollars or an Alternative Alternate Currency; ), (viiv) no the identity of the applicable Borrower and (v) 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 issued if it would be illegal under any irrevocable unless modified or rescinded by the applicable law Borrower in writing not less than two (2) Business Days prior to the proposed date of issuance (or effectiveness) specified therein. Not later than 12:00 noon (New York City time) on the proposed date of issuance (or effectiveness) specified in such Request for the beneficiary 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 have the Administrative Agent, which shall promptly furnish copies thereof to the Lenders.
(b) Schedule III contains a schedule of certain letters of credit issued for the account of the Company prior to the Closing Date. Subject to the satisfaction of the applicable conditions contained in Article VI, from and after the Closing Date such letters of credit shall be deemed to be Letters of Credit issued pursuant to this Article IV for all purposes hereunder (each such Letter of Credit, a "TRANSITIONAL LETTER OF CREDIT"). For purposes of clarification, each term or provision applicable to the issuance of a Letter of Credit issued in its favor; and (viiincluding conditions applicable thereto) no Letter shall be deemed to include the deemed issuance of the Transitional Letters of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or on the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1Closing Date.
(c) Upon at least one Business Day’s prior written notice Each Lender severally agrees with each Issuing Bank to participate in the Extension of Credit resulting from the issuance or deemed issuance (or telephonic notice promptly confirmed in writingextension, modification or amendment) to the Administrative Agent and the of each Letter of Credit Issuer issued or deemed issued (which or extended, amended or modified) pursuant to this Section 4.02 in the Administrative Agent shall promptly notify manner and the applicable Lendersamount provided in Section 4.04(b), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, and the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the deemed issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable shall be deemed to letters of credit generally;
(iii) except as otherwise agreed be a confirmation by the Administrative Agent each Issuing Bank and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date each Lender of such requested Letter of Credit issue letters of credit participation in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lenderamount.
(fd) The Letter of Credit Issuer Notwithstanding anything herein to the contrary, no Issuing Bank shall not have any obligation to, and no Issuing Bank shall, issue, extend, amend or modify any Letter of Credit if on the Letter date of Credit Issuer would not be permitted such issuance, extension, amendment or modification, before or after giving effect thereto, (i) the Total Outstandings at such time to issue such Letter of Credit in its amended form under would exceed the terms hereof.
Commitments, (g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (Aii) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf Dollar Equivalent of the Revolving Credit Lenders aggregate LC Outstandings with respect to any Letters of Credit issued by it and denominated in euros would exceed the documents associated therewith and Euro Sublimit or (iii) the Letter of Credit Issuer shall have all Dollar Equivalent of the benefits and immunities (A) provided to the Administrative Agent in Section 13 aggregate LC Outstandings with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if denominated in Indian Rupees would exceed the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerIndian Rupee Sublimit.
Appears in 2 contracts
Samples: Credit Agreement (CMS Energy Corp), Credit Agreement (CMS Energy Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthhereof, at any time and each Issuing Lender agrees to issue Letters of Credit hereunder from time to time after until the Original Closing Date and fifth Domestic Business Day prior to its Commitment Termination Date upon the L/C Maturity Daterequest and for the account of any Borrower; provided that, immediately after each Letter of Credit is issued, (i) the Utilization Limits shall not be exceeded and (ii) the aggregate amount of the Letter of Credit Issuer agrees, in reliance upon Liabilities shall not exceed $1,000,000,000. Upon the agreements date of issuance by the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, Issuing Lender of a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) , the Issuing Lender shall be deemed, without further action by any party hereto, to have sold to each Lender, and each Lender shall be deemed, without further action by any party hereto, to have purchased from the Issuing Lender, a participation to the extent of its Percentage in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that and the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each related Letter of Credit issued for the account of a Restricted SubsidiaryLiabilities.
(b) Notwithstanding The Borrower shall give the foregoingIssuing Lender notice at least three Domestic Business Days prior to the requested issuance of a Letter of Credit, (i) no or in the case of a Letter of Credit shall be issued substantially in the Stated Amount form of whichExhibit G, when added at least one Business Day prior to the Letters requested issuance of Credit Outstanding at such timeLetter of Credit, would exceed specifying the date such Letter of Credit Commitment then in effect; (ii) subject is to clause (f) below, no be issued and describing the terms of such Letter of Credit (such notice, including any such notice given in connection with the extension of a Letter of Credit, a “Notice of Issuance”), substantially in the form of Exhibit F, appropriately completed. Upon receipt of a Notice of Issuance, the Issuing Lender shall be issued promptly notify the Stated Amount Administrative Agent, and the Administrative Agent shall promptly notify each Lender of which would cause the aggregate contents thereof and of the amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then such Lender’s participation in effect; (iii) no such Letter of Credit in an Alternative Currency shall be issued Credit. The issuance by the Stated Amount Issuing Lender of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after shall, in addition to the date of issuance thereofconditions precedent set forth in Article 3, unless otherwise agreed upon by be subject to the Administrative Agent and the Letter of Credit Issuer, provided conditions precedent that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars U.S. dollars and shall be in such form and contain such terms as shall be reasonably satisfactory to the Issuing Lender. Unless otherwise notified by the Administrative Agent, the Issuing Lender may, but shall not be required to, conclusively presume that all conditions precedent set forth in Article 3 have been satisfied. The Borrower shall also pay to each Issuing Lender for its own account issuance, drawing, amendment and extension charges in the amounts and at the times as agreed between the Borrower and such Issuing Lender. Except for non-substantive amendments to any Letter of Credit for the purpose of correcting errors or an Alternative Currency; ambiguities or to allow for administrative convenience (vi) no which amendments each Issuing Lender may make in its discretion with the consent of the Borrower), the amendment, extension or renewal of any Letter of Credit shall be issued if it would deemed to be illegal under an issuance of such Letter of Credit. If any applicable law for the beneficiary of the Letter of Credit contains a provision pursuant to have which it is deemed to be automatically renewed unless notice of termination is given by the Issuing Lender of such Letter of Credit, the Issuing Lender shall timely give notice of termination if (i) as of close of business on the seventeenth day prior to the last day upon which the Issuing Lender’s notice of termination may be given to the beneficiaries of such Letter of Credit, the Issuing Lender has received a notice of termination from the Borrower or a notice from the Administrative Agent that the conditions to issuance of such Letter of Credit issued in its favor; and have not been satisfied or (viiii) no the renewed Letter of Credit shall be issued would have a term not permitted by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of subsection (xc) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1below.
(c) No Letter of Credit shall have a term extending beyond the first anniversary of the Commitment Termination Date of the applicable Issuing Lender.
(d) Upon at least one Business Day’s prior written receipt from the beneficiary of any applicable Letter of Credit of any notice (or telephonic notice promptly confirmed in writing) to of a drawing under such Letter of Credit, the Issuing Lender shall notify the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders)Borrower and each other Lender as to the amount to be paid as a result of such demand or drawing and the payment date. The Borrower shall be irrevocably and unconditionally obligated forthwith to reimburse the Issuing Lender for any amounts paid by the Issuing Lender upon any drawing under any Letter of Credit without presentment, demand, protest or other formalities of any kind. All such amounts paid by the Issuing Lender and remaining unpaid by the Borrower shall have bear interest, payable on demand, for each day until paid at a rate per annum equal to the rightBase Rate for such day plus, if such amount remains unpaid for more than two Domestic Business Days, 1%. In addition, each Lender will pay to the Administrative Agent, for the account of the applicable Issuing Lender, immediately upon such Issuing Lender’s demand at any time during the period commencing after such drawing until reimbursement therefor in full by the Borrower, an amount equal to such Lender’s ratable share of such drawing (in proportion to its participation therein), together with interest on such amount for each day from the date of the Issuing Lender’s demand for such payment (or, if such demand is made after 12:00 Noon (Eastern time) on such date, from the next succeeding Domestic Business Day) to the date of payment by such Lender of such amount at a rate of interest per annum equal to the Federal Funds Rate and, if such amount remains unpaid for more than five Domestic Business Days after the Issuing Lender’s demand for such payment, at a rate of interest per annum equal to the Base Rate plus 1%. The Issuing Lender will pay to each Lender ratably all amounts received from the Borrower for application in payment of its reimbursement obligations in respect of any dayLetter of Credit, permanently but only to terminate or reduce the extent such Lender has made payment to the Issuing Lender in respect of such Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved]pursuant hereto.
(e) The Letter obligations of Credit Issuer the Borrower and each Lender under subsection 2.15(d) above shall not be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under any obligation to issue any Letter of Credit ifall circumstances whatsoever, including without limitation the following circumstances:
(i) any order, judgment or decree the use which may be made of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Creditby, or any law applicable to the acts or omission of, a beneficiary of a Letter of Credit Issuer (or any request or directive (whether or not having Person for whom the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to itbeneficiary may be acting);
(ii) the issuance existence of such any claim, set-off, defense or other rights that the Borrower may have at any time against a beneficiary of a Letter of Credit would violate one (or more policies of any Person for whom the beneficiary may be acting), the Lenders (including the Issuing Lender) or any other Person, whether in connection with this Agreement or the Letter of Credit Issuer applicable to letters of credit generallyor any document related hereto or thereto or any unrelated transaction;
(iii) except as otherwise agreed by the Administrative Agent and the any statement or any other document presented under a Letter of Credit Issuerproving to be forged, such Letter of Credit is fraudulent or invalid in an initial Stated Amount less than $100,000 any respect or the Dollar Equivalent thereof, any statement therein being untrue or inaccurate in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Creditany respect whatsoever;
(iv) such payment under a Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit against presentation to the Issuing Lender of a draft or certificate that does not accept comply with the proposed amendment terms of the Letter of Credit; provided that the determination by the Issuing Lender to make such payment shall not have been the result of its willful misconduct or gross negligence; or
(v) any other act or omission to act or delay of any kind by any Lender (including the Issuing Lender), the Administrative Agent or any other Person or any other event or circumstance whatsoever that might, but for the provisions of this subsection (v), constitute a legal or equitable discharge of the Borrower’s or the Lender’s obligations hereunder.
(f) The Borrower hereby indemnifies and holds harmless each Lender (including the Issuing Lender) and the Administrative Agent from and against any and all claims, damages, losses, liabilities, costs or expenses which such Lender or the Administrative Agent may incur (including, without limitation, any claims, damages, losses, liabilities, costs or expenses which the Issuing Lender may incur by reason of or in connection with (i) the failure of any other Lender to fulfill or comply with its obligations to such Issuing Lender hereunder (but nothing herein contained shall affect any rights the Borrower may have against any Defaulting Lender) or (ii) any litigation arising with respect to any Letter of Credit issued under this Agreement (whether or not the Issuing Lender shall prevail in such litigation)), and none of the Lenders (including the Issuing Lender) nor the Administrative Agent nor any of their officers or directors or employees or agents shall be liable or responsible, by reason of or in connection with the execution and delivery or transfer of or payment or failure to pay under any Letter of Credit, including without limitation any of the circumstances enumerated in subsection 2.15(e) above, as well as (i) any error, omission, interruption or delay in transmission or delivery of any messages, by mail, facsimile or otherwise, (ii) any loss or delay in the transmission of any document required in order to make a drawing under a Letter of Credit and (iii) any consequences arising from causes beyond the control of the Issuing Lender, including, without limitation, any government acts or any other circumstances whatsoever, in making or failing to make payment under such Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Lender for any claims, damages, losses, liabilities, costs or expenses, and the Borrower shall have a claim for direct (but not consequential) damage suffered by it, to the extent found by a court of competent jurisdiction to have been caused by (x) the willful misconduct or gross negligence of the Issuing Lender in determining whether a request presented under any Letter of Credit complied with the terms of such Letter of Credit or (y) the Issuing Lender’s failure to pay under any Letter of Credit after the presentation to it of a request strictly complying with the terms and conditions of the Letter of Credit. Nothing in this subsection 2.15(f) is intended to limit the obligations of the Borrower under any other provision of this Agreement. To the extent the Borrower does not indemnify the Issuing Lender as required by this subsection, the Lenders agree to do so ratably in accordance with their Commitments.
(hg) The Letter of Credit Issuer Issuing Lender shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith therewith, and the Letter of Credit Issuer Issuing Lender shall have all of the benefits and immunities (Ai) provided to the Administrative Agent in Section 13 Article 7 (other than Sections 7.08 and 7.09) with respect to any acts taken or omissions suffered by the Letter of Credit Issuer Issuing Lender in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 Article 7 included the Letter of Credit Issuer Issuing Lender with respect to such acts or omissions, omissions and (Bii) as additionally provided herein with respect to the Issuing Lender.
(h) On (i) the Initial Effective Date, each Issuing Lender that has issued an Existing Duke Letter of Credit Issuershall be deemed, without further action by any party hereto, to have granted to each Lender, and each Lender shall be deemed, without further action by any party hereto, to have acquired from the Issuing Lender, a participation in such Existing Duke Letter of Credit and the related Letter of Credit Liabilities in the proportion its respective Commitment bears to the aggregate Commitments and (ii) the Second Effective Date, each Issuing Lender that has issued an Existing Progress Letter of Credit shall be deemed, without further action by any party hereto, to have granted to each Lender, and each Lender shall be deemed, without further action by any party hereto, to have acquired from the Issuing Lender, a participation in such Existing Progress Letter of Credit and the related Letter of Credit Liabilities in the proportion its respective Commitment bears to the aggregate Commitments. On and after the Initial Effective Date, each Existing Duke Letter of Credit shall constitute a Letter of Credit for all purposes hereof, and on and after the Second Effective Date, each Existing Progress Letter of Credit shall constitute a Letter of Credit for all purposes hereof and, in the case of each Existing Progress Letter of Credit, shall be deemed to have been issued hereunder at the request and for the account of the Company.
(i) By the 90th day preceding the Commitment Termination Date of the Issuing Lender (or if such 90th day is not a Domestic Business Day, then on the next preceding Domestic Business Day) (and on any subsequent date of issuance of a Long-Dated Letter of Credit), the Borrower shall Cash Collateralize all outstanding Long-Dated Letters of Credit (or such Long-Dated Letter or Credit).
(j) Any increase in the Commitments pursuant to Section 2.17 shall be subject to the condition that each Issuing Lender that at the time has an outstanding Letter of Credit shall have given its written consent to each Additional Lender and each increase in the Commitment of an existing Lender (such consent not to be unreasonably withheld or delayed). The Company shall request a similar consent from any other Issuing Lender (not to be unreasonably withheld or delayed) prior to requesting a Letter of Credit to be issued by such Issuing Lender. Any such other Issuing Lender that refuses to so consent shall thereupon cease to be an Issuing Lender hereunder, although the provisions of this Agreement applicable to Issuing Lenders shall continue to apply to it with respect to the period during which such Lender was an Issuing Lender. Any such Issuing Lender’s refusal to consent shall have no impact on any increases in the Commitments previously made.
(k) The participation of each Lender in any outstanding Letter of Credit, and its obligations under this Section 2.15 with respect thereto, shall terminate on its Commitment Termination Date, provided that if and to the extent required hereunder, the Borrower shall have timely Cash Collateralized each such Letter of Credit.
Appears in 2 contracts
Samples: Credit Agreement (Duke Energy Carolinas, LLC), Credit Agreement (Duke Energy CORP)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, the Borrower, at any time and from time to time on or after the Original Closing Date and prior to the L/C Maturity Date, may request that the Letter of Credit Issuer agreesissue, in reliance upon for the agreements account of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted SubsidiariesBorrower, a standby letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that ) which is participated by the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account Issuer pursuant to Section 3.3 (each such letter of credit, a Restricted Subsidiary“Letter of Credit”).
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters sum of (x) the Letter of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; time and (iiy) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount principal of the Lenders’ all Revolving Credit Exposures at the time of the issuance thereof to Loans then outstanding would exceed the Total Revolving Credit Commitment then in effect; effect (iii) it being understood that if no Revolving Credit Loans are then outstanding, the Letter of Credit in an Alternative Currency shall be issued Outstanding (calculated giving effect to the Stated Amount of which would cause such proposed Letter of Credit) may equal, but in no event shall exceed, the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit Total Revolving Credit Commitment then in effect); (ivii) each Letter of Credit shall have an expiration expiry date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, ; provided that in no event shall such expiration expiry date occur later than the L/C Maturity Date; (viii) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit and shall provide for drawings thereunder to be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued made in its favorDollars; and (viiiv) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from the Borrower or any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice (provided that in the case of any such notice delivered by the Borrower, the Administrative Agent has not objected to or contested such rescission) or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.112.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthforth herein, at any time and from time to time after the Original Closing Date and prior to the L/C Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct or indirect benefit of, account of the Borrower and (or, so long as the Borrower is the primary obligor, for the account of Holdings or any Restricted Subsidiaries, a letter of credit or Subsidiary (other than the Borrower)) letters of credit (the “Letters of Credit” and each, a “Letter of Credit”), which Letters of Credit shall not at any time exceed (i) without the consent of the applicable Letter of Credit Issuer, a Letter of Credit Issuer’s Letter of Credit Commitment or (ii) the L/C Sublimit in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) without the consent of the applicable Letter of Credit Issuer, no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding of such Letter of Credit Issuer at such time, would exceed the Letter of Credit Commitment of such Letter of Credit Issuer then in effect; (ii) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment L/C Sublimit then in effect; (iiiii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerthereof (except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, the Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized, the Revolving Credit Lenders; (v) each the Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (BrightView Holdings, Inc.), Credit Agreement (BrightView Holdings, Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Original Closing Date and prior to the L/C Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section Article 3, to issue from time to time from the Original Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct account of any Borrower (or, so long as a Borrower is the primary obligor, for the account of Holdings or indirect benefit of, the Borrower and the any Restricted Subsidiaries, Subsidiary (other than a letter Restricted Subsidiary that is a Borrower)) letters of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) bank guarantees in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that . The Credit Parties, the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit Issuer and the other Secured Parties agree that the Existing Letters of Credit shall be deemed Letters of Credit hereunder as if issued for by the account Letter of a Restricted SubsidiaryCredit Issuer, and from and after the Closing Date the Existing Letters of Credit shall be subject to and governed by the terms and conditions hereof.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment Line Cap then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued for the account of CGI Borrower the Stated Amount of which would cause the Aggregate Multicurrency aggregate amount of the Lenders’ Revolving Credit Exposures to CGI Borrower at the time of the issuance thereof to exceed the Multicurrency Sublimit CGI Borrower Line Cap then in effect; (iv) no Letter of Credit shall be issued for the account of Swiss Borrower the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures to Swiss Borrower at the time of the issuance thereof to exceed the Swiss Borrower Line Cap then in effect; (v) no Letter of Credit shall be issued in an Alternative Currency, the Stated Amount of which in the Equivalent Amount in Dollars, when added to the Letters of Credit Outstanding in all such Alternative Currencies at such time would exceed the Letter of Credit Sub-Commitment then in effect; (vi) unless otherwise agreed to by the Letter of Credit Issuer and the Administrative Agent, each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof (except with respect to trade or commercial Letters of Credit, which may have an expiration date occurring no later than 180 days after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issueror as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date; (v) , in each case, unless otherwise agreed upon by the Administrative Agent, the Letter of Credit shall be denominated in Dollars or an Alternative CurrencyIssuer and, unless such Letter of Credit has been Cash Collateralized, the Lenders; (vivii) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viiviii) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.114.1.
(c) Upon at least one two (2) Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower Borrowers shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment and the Letters of Credit Outstanding issued in Alternative Currencies shall not exceed the Equivalent Amount in Dollars of the Letter of Credit Sub-Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 50,000, U.S.$50,000 or the Dollar Equivalent thereof€50,000, in the case of a commercial Letter of Credit, or $10,000 10,000, U.S.$10,000 or the Dollar Equivalent thereof€10,000, in the case of a standby Letter of Credit;
(iv) unless otherwise agreed by the Administrative Agent and the Letter of Credit Issuer in accordance with Section 2.16, such Letter of Credit is denominated in a currency other than Dollars, U.S. Dollars or an Alternative CurrencyEuros;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrowers have entered into arrangements reasonably satisfactory to the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderLender or such risk has been reallocated in accordance with Section 2.17.
(fe) The Letter of Credit Issuer shall not amend increase the Stated Amount of any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(gf) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(hg) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 Article 14 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 Article 14 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.)
Letters of Credit. (a) Subject On the date hereof, without further action by any party hereto, each Existing LC Issuer shall be deemed to and upon the terms and conditions herein set forth, at any time and from time have granted to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request ofeach Bank, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiarieseach Bank shall be deemed to have acquired from each Existing LC Issuer, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) participation in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Existing Letter of Credit issued for by such Existing LC Issuer, equal to such Bank’s proportionate share of the account related Letter of a Restricted SubsidiaryCredit Liabilities. Such participations shall be on all the same terms and conditions as participations granted under this Section 2.15 in all the other Letters of Credit issued or to be issued hereunder.
(b) Notwithstanding Subject to the foregoingterms and conditions hereof, (i) no each Continuing LC Issuer agrees to issue Letters of Credit hereunder from time to time before its Commitment Termination Date upon the request of the Borrower; provided that, immediately after each Letter of Credit shall be issued the Stated Amount of whichis issued, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency Liabilities plus the aggregate outstanding amount of all Loans shall not exceed the aggregate amount of the Commitments. Upon the date of issuance by the Continuing LC Issuer of a Letter of Credit, the Continuing LC Issuer shall be issued deemed, without further action by any party hereto, to have sold to each Bank, and each Bank shall be deemed, without further action by any party hereto, to have purchased from the Stated Amount Continuing LC Issuer, a participation in such Letter of which would cause Credit and the Aggregate Multicurrency Exposures related Letter of Credit Liabilities in the proportion its Commitment bears to the aggregate Commitments; provided that if the scheduled Commitment Termination Date of a Bank falls prior to the expiry date of a Letter of Credit then outstanding and the Commitments of the other Banks are extended on such date in accordance with Section 2.01(c), such Bank’s participation in such Letter of Credit shall terminate on its Commitment Termination Date, and the participations of the other Banks therein shall be redetermined pro rata in proportion to their Commitments after giving effect to the termination of the Commitment of such former Bank; and provided, further that, in the event that the Commitments of the other Banks are not extended in accordance with Section 2.01(c), then such Bank’s participation in all Letters of Credit shall remain at the time level existing prior to the proposed extension, regardless of whether the expiry of any such Letters of Credit extends beyond such Bank’s Commitment Termination Date.
(c) The Borrower shall give the Continuing LC Issuer notice at least three Domestic Business Days prior to the requested issuance of a Letter of Credit, or, in the case of the Continuing LC Issuer’s Existing Letters of Credit (or Letters of Credit substantially in the form of the Continuing LC Issuer’s Existing Letters of Credit) or Letters of Credit substantially in the form of Exhibit G, at least one Business Day prior to the requested issuance of such Letter of Credit, specifying the date such Letter of Credit is to be issued and describing the terms of such Letter of Credit (such notice, including any such notice given in connection with the extension of a Letter of Credit, a “Notice of Issuance”), substantially in the form of Exhibit F, appropriately completed. Upon receipt of a Notice of Issuance, the Continuing LC Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Bank of the contents thereof to exceed and of the Multicurrency Sublimit then amount of such Bank’s participation in effect; (iv) such Letter of Credit. The issuance by the Continuing LC Issuer of each Letter of Credit shall have an expiration date occurring no later than one year after shall, in addition to the date of issuance thereofconditions precedent set forth in Article 3, unless otherwise agreed upon by be subject to the Administrative Agent and the Letter of Credit Issuer, provided conditions precedent that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars U.S. dollars and shall be in such form and contain such terms as shall be reasonably satisfactory to the Continuing LC Issuer. Unless otherwise notified by the Administrative Agent, the Continuing LC Issuer may, but shall not be required to, conclusively presume that all conditions precedent set forth in Article 3 have been satisfied. The Borrower shall also pay to each Issuing Bank for its own account issuance, drawing, amendment and extension charges in the amounts and at the times as agreed between the Borrower and such Issuing Bank. Except for non-substantive amendments to any Letter of Credit for the purpose of correcting errors or an Alternative Currency; ambiguities or to allow for administrative convenience (vi) no which amendments each Issuing Bank may make in its discretion with the consent of the Borrower), the amendment, extension or renewal of any Letter of Credit shall be issued if it would deemed to be illegal under an issuance of such Letter of Credit. If any applicable law for the beneficiary of the Letter of Credit contains a provision pursuant to which it is deemed to be automatically renewed unless notice of termination is given by the Issuing Bank of such Letter of Credit, the Issuing Bank shall timely give notice of termination if (i) as of close of business on the seventeenth day prior to the last day upon which the Issuing Bank’s notice of termination may be given to the beneficiaries of such Letter of Credit, the Issuing Bank has received a notice of termination from the Borrower or a notice from the Administrative Agent that the conditions to issuance of such Letter of Credit have not been satisfied, (ii) the renewed Letter of Credit would have a term not permitted by subsection (d) below or (iii) such Letter of Credit is an Existing Letter of Credit issued in its favor; and by Bank One, NA.
(viid) no No Letter of Credit shall be issued by have a term extending or extendible beyond the first anniversary of the Commitment Termination Date of the applicable Issuing Bank.
(e) Upon receipt from the beneficiary of any applicable Letter of Credit Issuer after it has received of any notice of a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until drawing under such time as the Letter of Credit Issuer Credit, the Issuing Bank shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to notify the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), Borrower and each other Bank as to the amount to be paid as a result of such demand or drawing and the payment date. The Borrower shall have be irrevocably and unconditionally obligated forthwith to reimburse the right, on Issuing Bank for any day, permanently to terminate or reduce amounts paid by the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be Issuing Bank upon any drawing under any obligation to issue any Letter of Credit ifwithout presentment, demand, protest or other formalities of any kind. All such amounts paid by the Issuing Bank and remaining unpaid by the Borrower shall bear interest, payable on demand, for each day until paid at a rate per annum equal to the Base Rate for such day plus, if such amount remains unpaid for more than two Domestic Business Days, 1%. In addition, each Bank will pay to the Administrative Agent, for the account of the applicable Issuing Bank, immediately upon such Issuing Bank’s demand at any time during the period commencing after such drawing until reimbursement therefor in full by the Borrower, an amount equal to such Bank’s ratable share of such drawing (in proportion to its participation therein), together with interest on such amount for each day from the date of the Issuing Bank’s demand for such payment (or, if such demand is made after 12:00 Noon (New York City time) on such date, from the next succeeding Domestic Business Day) to the date of payment by such Bank of such amount at a rate of interest per annum equal to the Federal Funds Rate and, if such amount remains unpaid for more than five Domestic Business Days after the Issuing Bank’s demand for such payment, at a rate of interest per annum equal to the Base Rate plus 1%. The Issuing Bank will pay to each Bank ratably all amounts received from the Borrower for application in payment of its reimbursement obligations in respect of any Letter of Credit, but only to the extent such Bank has made payment to the Issuing Bank in respect of such Letter of Credit pursuant hereto.
(f) The obligations of the Borrower and each Bank under subsection 2.15(e) above shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under all circumstances whatsoever, including without limitation the following circumstances:
(i) any order, judgment or decree the use which may be made of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Creditby, or any law applicable to the acts or omission of, a beneficiary of a Letter of Credit Issuer (or any request or directive (whether or not having Person for whom the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to itbeneficiary may be acting);
(ii) the issuance existence of such any claim, set-off, defense or other rights that the Borrower may have at any time against a beneficiary of a Letter of Credit would violate one (or more policies of any Person for whom the beneficiary may be acting), the Banks (including the Issuing Bank) or any other Person, whether in connection with this Agreement or the Letter of Credit Issuer applicable to letters of credit generallyor any document related hereto or thereto or any unrelated transaction;
(iii) except as otherwise agreed by the Administrative Agent and the any statement or any other document presented under a Letter of Credit Issuerproving to be forged, such Letter of Credit is fraudulent or invalid in an initial Stated Amount less than $100,000 any respect or the Dollar Equivalent thereof, any statement therein being untrue or inaccurate in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Creditany respect whatsoever;
(iv) such payment under a Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit against presentation to the Issuing Bank of a draft or certificate that does not accept comply with the proposed amendment terms of the Letter of Credit; provided that the determination by the Issuing Bank to make such payment shall not have been the result of its willful misconduct or gross negligence; or
(v) any other act or omission to act or delay of any kind by any Bank (including the Issuing Bank), the Administrative Agent or any other Person or any other event or circumstance whatsoever that might, but for the provisions of this subsection (v), constitute a legal or equitable discharge of the Borrower’s or the Bank’s obligations hereunder.
(g) The Borrower hereby indemnifies and holds harmless each Bank (including the Issuing Bank) and the Administrative Agent from and against any and all claims, damages, losses, liabilities, costs or expenses which such Bank or the Administrative Agent may incur (including, without limitation, any claims, damages, losses, liabilities, costs or expenses which the Issuing Bank may incur by reason of or in connection with (i) the failure of any other Bank to fulfill or comply with its obligations to such Issuing Bank hereunder (but nothing herein contained shall affect any rights the Borrower may have against such defaulting Bank) or (ii) any litigation arising with respect to this Agreement (whether or not the Issuing Bank shall prevail in such litigation)), and none of the Banks (including the Issuing Bank) nor the Administrative Agent nor any of their officers or directors or employees or agents shall be liable or responsible, by reason of or in connection with the execution and delivery or transfer of or payment or failure to pay under any Letter of Credit, including without limitation any of the circumstances enumerated in subsection 2.15(f) above, as well as (i) any error, omission, interruption or delay in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, (ii) any loss or delay in the transmission of any document required in order to make a drawing under a Letter of Credit and (iii) any consequences arising from causes beyond the control of the Issuing Bank, including, without limitation, any government acts or any other circumstances whatsoever, in making or failing to make payment under such Letter of Credit; provided that the Borrower shall not be required to indemnify the Issuing Bank for any claims, damages, losses, liabilities, costs or expenses, and the Borrower shall have a claim for direct (but not consequential) damage suffered by it, to the extent found by a court of competent jurisdiction to have been caused by (x) the willful misconduct or gross negligence of the Issuing Bank in determining whether a request presented under any Letter of Credit complied with the terms of such Letter of Credit or (y) the Issuing Bank’s failure to pay under any Letter of Credit after the presentation to it of a request strictly complying with the terms and conditions of the Letter of Credit. Nothing in this subsection 2.15(g) is intended to limit the obligations of the Borrower under any other provision of this Agreement. To the extent the Borrower does not indemnify the Issuing Bank as required by this subsection, the Banks agree to do so ratably in accordance with their Commitments.
(h) The Letter of Credit Issuer Issuing Bank shall act on behalf of the Revolving Credit Lenders Banks with respect to any Letters of Credit issued by it and the documents associated therewith therewith, and the Letter of Credit Issuer Issuing Bank shall have all of the benefits and immunities (Ai) provided to the Administrative Agent in Section 13 Article 7 (other than Sections 7.08 and 7.09) with respect to any acts taken or omissions suffered by the Letter of Credit Issuer Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 Article 7 included the Letter of Credit Issuer Issuing Bank with respect to such acts or omissions, omissions and (Bii) as additionally provided herein with respect to the Letter of Credit IssuerIssuing Bank.
Appears in 2 contracts
Samples: Credit Agreement (Duke Energy Corp), Credit Agreement (Duke Energy Corp)
Letters of Credit. (a) Subject to and upon During the terms and conditions herein set forth, at any time and period from time to time after the Original Closing Date and prior to but excluding the L/C Maturity Date, Borrower, by notice to Administrative Agent and the Letter of Credit Issuer agreesapplicable Fronting Bank, may request, in reliance upon the agreements lieu of advances of proceeds of the Revolving Credit Lenders set forth in this Section 3Ratable Loans, to that a Fronting Bank issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request ofunconditional, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or irrevocable standby letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may for the account of Borrower or its designee (which shall be approved by a Subsidiary or other Affiliate of Borrower) (it being understood that the issuance of a Letter of Credit Issuer for the account of a designee shall not in any way relieve Borrower of any of its reasonable discretion; provided obligations hereunder), payable by sight drafts, for such beneficiaries and with such other terms as Borrower shall specify and which are reasonably acceptable to such Fronting Bank. Unless the applicable Fronting Bank has received written notice from the Administrative Agent, not less than one (1) Banking Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Section 4.02 shall not have been satisfied, then, subject to the terms and conditions hereof, such Fronting Bank, on the requested date, shall issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with such Fronting Bank’s usual and customary business practices. Promptly upon issuance of a Letter of Credit by a Fronting Bank, such Fronting Bank shall notify Administrative Agent and Administrative Agent shall notify each of the Banks. Notwithstanding anything herein to the contrary, the Fronting Banks shall have no obligation hereunder to issue, and shall not issue, any Letter of Credit the proceeds of which would be made available to any Person (i) to fund any activity or business of or with any Sanctioned Person, or in any country or territory that, at the time of such funding, is the subject or target of any Sanctions or (ii) in any manner that would result in a violation of any Sanctions by any party to this Agreement.
(b) The amount of any such Letter of Credit shall be limited to the lesser of (1) Fifty Million Dollars ($50,000,000) (as such amount may be reduced by written notice from the Borrower to the Administrative Agent consistent with the requirements of Section 2.15(a) so long as the outstanding Letters of Credit do not exceed such reduced amount) less the aggregate face amount of all other Letters of Credit then issued and outstanding or (2) the Available Total Loan Commitment, it being understood that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, amount of each Letter of Credit issued for and outstanding shall effect a reduction, by an equal amount, of the account of a Restricted Subsidiary.
Available Total Loan Commitment as provided in Section 2.01(b) (b) Notwithstanding such reduction to be allocated to each Bank’s Loan Commitment ratably in accordance with the foregoingBanks’ respective Pro Rata Shares); provided, however, that (i) no Fronting Bank shall be obligated to issue any Letter of Credit if, after giving effect to such issuance, the aggregate face amount of Letters of Credit issued by such Fronting Bank would exceed Twenty-Five Million Dollars ($25,000,000) and (ii) a Fronting Bank (other than Xxxxx Fargo Bank, National Association) shall not issue a Letter of Credit unless the aggregate stated amount of outstanding Letters of Credit issued by Xxxxx Fargo Bank, National Association would exceed Twenty-Five Million Dollars ($25,000,000) if Xxxxx Fargo Bank, National Association were to issue such Letter of Credit. Upon the issuance by a Fronting Bank of a Letter of Credit and until such Letter of Credit shall have expired or been cancelled, the Loan Commitment of each Bank shall be deemed to be utilized for all purposes of this Agreement in an amount equal to the product of such Bank’s Pro Rata Share of the stated amount of such Letter of Credit plus any related Reimbursement Obligations in respect of such Letter of Credit then outstanding.
(c) The amount of each Letter of Credit shall be issued the Stated Amount of which, when added further subject to the Letters conditions and limitations applicable to amounts of Credit Outstanding at such time, would exceed advances set forth in Section 2.04 and the Letter procedures for the issuance of Credit Commitment then in effect; (ii) subject to clause (f) below, no each Letter of Credit shall be issued the Stated Amount same as the procedures applicable to the making of which would cause advances as set forth in the aggregate amount first sentence of the Lenders’ Revolving Credit Exposures at the time Section 2.05.
(d) A Fronting Bank’s issuance of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have be subject to Borrower’s satisfaction of all conditions precedent to its entitlement to an expiration date occurring no later than one year after advance of proceeds of the date Loans.
(e) Each Letter of issuance thereof, Credit shall (i) unless otherwise agreed upon approved by the Administrative Agent and the Fronting Bank that is to issue such Letter of Credit, expire no later than the earlier of (x) seven (7) days prior to the Maturity Date or (y) one (1) year after the date of its issuance; provided, however, a Letter of Credit Issuer, provided may contain a provision providing for the automatic extension of its expiration date in the absence of a notice of non-renewal from the relevant Fronting Bank but (unless approved by the Administrative Agent and the Fronting Bank that is to issue such Letter of Credit) in no event shall any such provision permit the extension of the expiration date occur of such Letter of Credit beyond the date that is fifteen (15) days prior to the Maturity Date and (ii) be in a minimum amount of One Hundred Thousand Dollars ($100,000), or such lesser amount approved by the applicable Fronting Bank. In no event shall a Letter of Credit expire later than the L/C first anniversary of the Maturity Date; (v) . Notwithstanding the foregoing, in the event that, with the approval of the Administrative Agent and each Fronting Bank with a Letter of Credit shall be denominated in Dollars or an Alternative Currency; then outstanding, any Letters of Credit are issued and outstanding on the date that is fourteen (vi14) no days prior to the Maturity Date (any such Letter of Credit being referred to as an “Extended Letter of Credit”), Borrower shall deliver to Administrative Agent on such date by wire transfer of immediately available funds a cash deposit in the amount of such Letters of Credit in accordance with the provisions of Section 2.16(i). To the extent Borrower fails to provide such cash deposit with respect to any Extended Letter of Credit by the date that is fourteen (14) days prior to the Maturity Date, such failure shall be issued if it would treated as a drawing under such Extended Letter of Credit (in an amount equal to the maximum stated amount of such Letter of Credit), which shall be illegal reimbursed (or participations therein funded) by the Banks in accordance with Section 2.16(h), with the proceeds being utilized to provide such cash deposit for such Extended Letter of Credit. Such funds shall be held by Administrative Agent and applied to repay the amount of any drawing under such Extended Letters of Credit on or after the Maturity Date. Such funds, with any interest earned thereon, will be returned to Borrower (and may be returned from time to time with respect to any applicable law Extended Letter of Credit) on the earlier of (a) the date that the applicable Extended Letter of Credit or Extended Letters of Credit expire in accordance with their terms; and (b) the date that the applicable Extended Letter of Credit or Extended Letters of Credit are cancelled; provided that upon the expiration or cancellation of an Extended Letter of Credit for which the Banks reimbursed (or funded participations in) a drawing deemed to have occurred as provided in this Section 2.16 but in respect of which the Banks have not otherwise received payment for the beneficiary amount so reimbursed or funded, the Administrative Agent shall promptly remit to the Banks the amount of such funds so reimbursed or funded for such Extended Letter of Credit, pro rata in accordance with the respective unpaid reimbursements or funded participations of the Banks in respect of such Extended Letter of Credit. Notwithstanding the foregoing, the Administrative Agent shall not be required to, and shall not, return any such funds to the extent doing so would result in the amount of such funds being less than the stated amount of all Extended Letters of Credit then outstanding.
(f) In connection with, and as a further condition to the issuance of, a Letter of Credit, Borrower shall execute and deliver to the relevant Fronting Bank an application for the Letter of Credit in such form, and together with such other documents, opinions and assurances, as such Fronting Bank shall reasonably require.
(g) In connection with each Letter of Credit, Borrower hereby covenants to have pay (i) to Administrative Agent, quarterly in arrears (on the first Banking Day of each calendar quarter following the issuance of such Letter of Credit), a fee, payable to Administrative Agent for the account of the Banks, computed daily (calculated on the basis of a year of three hundred sixty (360) days for the actual number of days elapsed) on the face amount of such Letter of Credit issued in its favor; and outstanding at a rate per annum equal to the “Banks’ L/C Fee Rate” (as hereinafter defined) and (viiii) no to the Fronting Bank of such Letter of Credit shall be issued by a on the date that such Letter of Credit Issuer after it has received a written notice from any Credit Party is issued, an issuance fee of 0.125% (or such other amount as the Borrower and such Fronting Bank may agree in writing) of the face amount of such Letter of Credit, payable to the applicable Fronting Bank only at the time of issuance of such letter of credit. Administrative Agent or shall have no responsibility for the Required Revolving collection of the fee for any Letter of Credit Lenders stating that is payable to a Default or Fronting Bank. For purposes of this Agreement, the “Banks’ L/C Fee Rate” shall mean, provided no Event of Default has occurred and is continuing until such time as continuing, a rate per annum (calculated on the basis of a year of three hundred sixty (360) days for the actual number of days elapsed) equal to the Applicable Margin for LIBOR Loans minus 0.125% and, in the event an Event of Default has occurred and is continuing, a rate per annum (calculated on the basis of a year of three hundred sixty (360) days for the actual number of days elapsed) equal to the Default Rate. It is understood and agreed that the last installment of the fees provided for in this paragraph (g) with respect to any particular Letter of Credit Issuer shall have received a written notice be due and payable on the first day of (x) rescission the calendar quarter following the surrender, cancellation or expiration of such notice Letter of Credit. Borrower shall pay directly to a Fronting Bank from time to time on demand all commissions, charges, costs and expenses (excluding any issuance fee other than as provided in clause (ii) above) in the party amounts customarily charged or parties originally delivering incurred by such notice or (y) the waiver of such Default or Event of Default Fronting Bank from time to time in accordance like circumstances with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) respect to the Administrative Agent and the Letter issuance, amendment, renewal or extension of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lendertransaction relating thereto.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Urban Edge Properties), Revolving Credit Agreement (Urban Edge Properties)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct or indirect benefit of, Holdings, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, applicant and shall be jointly and severally liable with respect to, each Letter of Credit issued for the account of Holdings or a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect[reserved]; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerthereof (except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer; (v) each Letter of Credit shall be denominated in Dollars Dollars, Euro or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one two Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved]The parties hereto agree that the Existing Letters of Credit shall be deemed to be Letters of Credit for all purposes under this Agreement, without any further action by the Borrower, the Letter of Credit Issuer or any other Person.
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) unless otherwise agreed by the Administrative Agent and the applicable Letter of Credit Issuer, such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) unless otherwise agreed by the Administrative Agent and the applicable Letter of Credit Issuer, the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower has entered into arrangements satisfactory to the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 2 contracts
Samples: Credit Agreement (RBC Bearings INC), Credit Agreement (RBC Bearings INC)
Letters of Credit. (a) Subject to and upon Upon the terms and subject to the conditions herein set forth, the Borrower may request a Fronting Bank, at any time and from time to time after the Original Closing Date date hereof and prior to the L/C Final Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request ofissue, and for subject to the direct or indirect benefit ofterms and conditions contained herein, the Borrower and the Restricted Subsidiariessuch Fronting Bank shall issue, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Borrower one or more Letters of Credit Outstanding at such timeCredit, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) belowprovided, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereofhowever, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for after giving effect to such issuance (i) the beneficiary of the aggregate Letter of Credit to have a Outstandings shall exceed $50,000,000, (ii) the aggregate Letter of Credit issued in Outstandings, when added to the aggregate outstanding principal amount of the Loans, would exceed the Total Commitment or (iii) the provisions of Section 2.02 would be violated thereby.
(b) No commercial Letter of Credit shall expire later than the earlier of (u) 180 days after its favor; date of issue and (viiv) the Final Maturity Date, and no standby Letter of Credit shall expire later than the earlier of (w) one year after the date of its issue and (x) the Final Maturity Date, provided, however, that the foregoing clause (w) shall not prohibit the issuance of "evergreen" standby Letters of Credit with an initial term of one year or less from the date of issue if the Agent or the Fronting Bank may (without the agreement of the Borrower) prevent the renewal of such standby Letter of Credit pursuant to terms consistent with the past practice of the Borrower; provided, however, that if any Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or outstanding on the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders)Final Maturity Date, the Borrower shall have shall, at or prior to the right, on any day, permanently to terminate or reduce the Letter Final Maturity Date (i) cause all Letters of Credit Commitment which expire after the Final Maturity Date to be returned to the Fronting Bank undrawn and marked "cancelled" or (ii) if the Borrower is unable to do so in whole or in part, provided that, after giving effect either (y) provide a "back-to-back" letter of credit to one or more Fronting Banks in a form satisfactory to such termination Fronting Banks, the Agent and the Banks (in their sole discretion), issued by a bank reasonably satisfactory to such Fronting Bank and the Agent (in their reasonable discretion) in an amount equal to the then undrawn stated amount of all outstanding Letters of Credit issued by such Fronting Banks and/or (z) deposit cash with the Agent in an amount equal to the then undrawn stated amount of all outstanding Letters of Credit as collateral security for the Borrower's reimbursement obligations in connection therewith. "Back-to-back" letters of credit and cash deposited with the Agent in respect of a particular Letter of Credit pursuant to this Section 2.03(b) shall be returned to the Borrower upon the expiration of such Letter of Credit undrawn or reductionupon the payment in full of all reimbursement and other obligations in connection therewith.
(c) The Borrower shall pay to each Fronting Bank, in addition to such other fees and charges as are specifically provided for in Section 2.21 hereof, such fees and charges in connection with the issuance and processing of the Letters of Credit Outstanding shall not exceed the Letter issued by such Fronting Bank as are customarily imposed by such Fronting Bank from time to time in connection with letter of Credit Commitmentcredit transactions.
(d) [Reserved]Drafts drawn under each Letter of Credit shall be reimbursed by the Borrower not later than the first Business Day following the date of draw and shall bear interest from the date of draw until reimbursed in full at a rate per annum equal to the Alternate Base Rate (computed on the basis of the actual number of days elapsed over a year of 360 days).
(e) The Letter Immediately upon the issuance of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) by any orderFronting Bank, judgment such Fronting Bank shall be deemed to have sold to each Bank other than such Fronting Bank and each such other Bank shall be deemed unconditionally and irrevocably to have purchased from such Fronting Bank, without recourse or decree warranty, an undivided interest and participation, to the extent of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Bank's Commitment Percentage, in such Letter of Credit, or each drawing thereunder and the obligations of the Borrower and the Guarantors under this Agreement with respect thereto. Upon any law applicable change in the Commitments pursuant to the Section 10.03, it is hereby agreed that with respect to all Letter of Credit Issuer or any request or directive (whether or not having Outstandings, there shall be an automatic adjustment to the force of law) from any Governmental Authority with jurisdiction over participations hereby created to reflect the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies new Commitment Percentages of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed assigning and assignee Banks. Any action taken or omitted by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is a Fronting Bank under or in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of connection with a commercial Letter of Credit, if taken or $10,000 or the Dollar Equivalent thereof, omitted in the case absence of a standby Letter of Credit;
(iv) gross negligence or willful misconduct, shall not create for such Letter of Credit is denominated in a currency Fronting Bank any resulting liability to any other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderBank.
(f) The Letter of Credit Issuer shall not amend In the event that a Fronting Bank makes any payment under any Letter of Credit if and the Letter Borrower shall not have reimbursed such amount in full to such Fronting Bank pursuant to this Section, the Fronting Bank shall promptly notify the Agent, which shall promptly notify each Bank of Credit Issuer would such failure, and each Bank shall promptly and unconditionally pay to the Agent for the account of the Fronting Bank the amount of such Bank's Commitment Percentage of such unreimbursed payment in Dollars and in same day funds. If the Fronting Bank so notifies the Agent, and the Agent so notifies the Banks prior to 11:00 a.m. (New York City time) on any Business Day, such Banks shall make, available to the Fronting Bank such Bank's Commitment Percentage of the amount of such unreimbursed payment on such Business Day in same day funds. If and to the extent such Bank shall not be permitted have so made its Commitment Percentage of the amount of such payment available to the Fronting Bank, such Bank agrees to pay to such Fronting Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the agent for the account of such Fronting Bank at such time the Federal Funds Effective Rate. The failure of any Bank to issue such Letter make available to the Fronting Bank its Commitment Percentage of Credit in its amended form any payment under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) shall not relieve any other Bank of its obligation hereunder to make available to the Fronting Bank its Commitment Percentage of any payment under any Letter of Credit Issuer would have on the date required, as specified above, but no obligation at such time Bank shall be responsible for the failure of any other Bank to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment make available to such Letter Fronting Bank such other Bank's Commitment Percentage of Credit.
(h) The Letter any such payment. Whenever a Fronting Bank receives a payment of Credit Issuer a reimbursement obligation as to which it has received any payments from the Banks pursuant to this paragraph, such Fronting Bank shall act on behalf of the Revolving Credit Lenders with respect pay to any Letters of Credit issued by it each Bank which has paid its Commitment Percentage thereof, in Dollars and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining same day funds, an amount equal to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerBank's Commitment Percentage thereof.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Carson Pirie Scott & Co /Il/)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, the Borrower, at any time and from time to time on or after the Original Closing Date and on or prior to the L/C date that is thirty (30) days prior to the Revolving Credit Maturity Date, may request that the Letter of Credit Issuer agreesissue, in reliance upon for the agreements account of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted SubsidiariesBorrower, a standby letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters Letter of Credit Outstanding Outstandings at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause which, when added to the sum of (x) the Letter of Credit Outstandings at such time and (y) the aggregate amount principal of the Lenders’ all Revolving Credit Exposures at the time of the issuance thereof to Loans then outstanding, would exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereofthereof unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer and, if renewable, may be renewed for successive periods not to exceed one year, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date (after giving effect to all renewals) occur later than the L/C Maturity Date; (viv) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favorDollars; and (viiv) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from the Borrower or any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters Letter of Credit Outstanding Outstandings shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Borrower may request that the Issuing Bank issue for the account of the Borrower or any Subsidiary a Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) Credit in such form as may be approved by the Letter of Credit Issuer Issuing Bank in its reasonable discretion; provided that discretion (all of which Letters of Credit, for the Borrower avoidance of doubt, shall be a co-applicant, and jointly and severally liable with respect to, each Letter Obligations of Credit issued for the account of a Restricted Subsidiary.
(b) Borrower). Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued issued, amended (to increase the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof thereof), extended or renewed if, after giving effect to exceed such issuance, amendment, extension or renewal, the Total Revolving Credit Exposure would exceed the Aggregate Commitment then in effectAmount; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit IssuerIssuing Bank, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (viiv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viiv) no Letter of Credit shall be issued by a Letter of Credit Issuer an Issuing Bank after it has received a written notice from the Borrower or any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer Issuing Bank shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) 10.01. Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer Issuing Bank (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, the Borrower may request the Letter of Credit Issuer at any time and from time to time on or after the Original Closing Effective Date and prior to the L/C Maturity DateExpiry Date to issue, for the account of the Borrower and in support of insurance obligations, workers compensation, bonding obligations in respect of taxes, licenses and similar requirements, and other obligations, as are acceptable to the Agent in its sole discretion, of the Borrower and/or any Subsidiary, and subject to and upon the terms and conditions herein set forth such Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, agrees to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request oftime, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or irrevocable letters of credit (so requested by the “Letters of Credit” and each, a “Letter of Credit”) Borrower in such form as may be approved by the such Letter of Credit Issuer and the Agent in its reasonable discretion; provided that their sole discretion (together with the Borrower shall be a co-applicant, and jointly and severally liable with respect toExisting Letters of Credit, each a "Letter of Credit issued for Credit" and, collectively, the account "Letters of a Restricted SubsidiaryCredit").
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Outstandings at such time would exceed either (x) $60,000,000 or (y) when added to the aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks and all Swingline Loans then outstanding, the Adjusted Total Available Revolving Commitment then in effectat such time (after giving effect to any reductions to the Total Revolving Commitment on such date); (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration expiry date occurring no not later than one year after the such Letter of Credit's date of issuance thereof, unless otherwise agreed upon by (subject to extension provisions acceptable to the Administrative Agent and the Letter of Credit Issuer, provided it being understood that provisions which provide for automatic extensions unless the Letter of Credit Issuer has given a termination notice at least 30 to 60 days prior to the date of such automatic extension shall be permitted) and in no event shall such expiration date occur occurring later than the L/C Maturity third Business Day preceding the Expiry Date; (viii) each Letter of Credit shall be denominated in Dollars or an Alternative CurrencyU.S. dollars; (viiv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary have a Stated Amount of less than $250,000 unless otherwise agreed to by the Letter of Credit to have a Letter of Credit issued in its favorIssuer; and (viiv) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent Borrower or the Required Revolving Credit Lenders Banks stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (xi) rescission of such notice from the party or parties originally delivering such notice or (yii) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderRequired Banks.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon all the terms and conditions herein set forthhereof, 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 any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, Borrower's request Xxxxxx may in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to its discretion issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (an "L/C" and collectively the “Letters "L/Cs") for the account of the Borrower subject to availability under the DIP Credit” , and each, a “Letter the Banks hereby agree to participate therein as more fully described in Section 1.7 hereof. Each L/C shall be issued pursuant to an application for letter of Credit”credit (the "L/C Agreement") in such the form as may of Exhibit B hereto. The L/Cs shall consist of standby and commercial letters of credit in an aggregate face amount not to exceed $10,000,000. Each L/C shall have an expiry date not more than one year from the date of issuance thereof (but in no event later than the Maturity Date). The amount available to be approved by drawn under each L/C issued pursuant hereto shall be deducted from the Letter credit otherwise available under the Revolving Credit. In consideration of Credit Issuer in its reasonable discretion; provided that the issuance of L/Cs the Borrower shall be agrees to pay Xxxxxx for the benefit of the Banks a cofee (the "L/C Participation Fee") in the amount per annum equal to four percent (4%) (computed on the basis of a 360-applicant, day year and jointly and severally liable with respect to, actual days elapsed) of the face amount for each Letter of Credit L/C issued for the account of the Borrower hereunder. In addition, the Borrower shall pay Xxxxxx (x) a Restricted Subsidiaryfee (the "L/C Issuance Fee") in the amount per annum equal to (i) for standby L/Cs, one-quarter of one percent (0.25%) of the stated amount of each standby L/C issued hereunder and (ii) for commercial L/Cs, the customary issuance fees for commercial L/Cs as may be established by Xxxxxx from time to time, and (y) such drawing, negotiation, amendment and other administrative fees in connection with each L/C as may be established by Xxxxxx from time to time (the "L/C Administrative Fee"). All L/C Issuance Fees and L/C Participation Fees shall be payable monthly in arrears on the last day of each month commencing May 31, 2003 and on the Termination Date, and all L/C Administrative Fees shall be payable on the date of issuance of each L/C hereunder and on the date required by Xxxxxx.
(b) Notwithstanding anything contained in any L/C Agreement to the foregoing, contrary: (i) no Letter of Credit the Borrower shall be issued the Stated Amount of whichpay fees in connection with each L/C as set forth in Section 1.4(a) hereof, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (fexcept as otherwise provided in Section 3.4(b) belowhereof and Section 3.6(b) hereof, no Letter before the occurrence of Credit shall be a Potential Default or an Event of Default, Xxxxxx will not call for the funding by the Borrower of any amount under an L/C issued for the Stated Amount Borrower's account, or for any other form of which would cause collateral security for the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then Borrower's obligations in effect; connection with such L/C, before being presented with a drawing thereunder, and (iii) no Letter if Xxxxxx is not timely reimbursed for the amount of Credit any drawing under an L/C on the date such drawing is paid, the Borrower's obligation to reimburse Xxxxxx for the amount of such drawing shall bear interest as specified in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (ivSection 1.3(b) each Letter of Credit shall have hereof. If Xxxxxx issues any L/C with an expiration date occurring no later that is automatically extended unless Xxxxxx gives written notice that the expiration date will not so extend beyond its then scheduled expiration date, Xxxxxx will give such written notice of non-renewal before the time necessary to prevent such automatic extension if before such required notice date (i) the expiration date of such L/C if so extended would be more than one year from the then scheduled expiration date of such L/C or after the Maturity Date, (ii) the DIP Commitments have been terminated, or (iii) an Event of Default exists and the Required Banks have given Xxxxxx instructions not to so permit the extension of the expiration date of such L/C.
(c) The DIP Agent shall give prompt telephone, telex, or telecopy notice to each Bank of each issuance thereofof, unless otherwise agreed upon by or amendment to, an L/C specifying the Administrative Agent and the Letter effective date of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for amendment, the beneficiary amount, the beneficiary, and the expiration date of the Letter of Credit to have a Letter of Credit issued L/C, in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party each case as established originally or through the Administrative Agent or relevant amendment, as applicable, the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the account party or parties originally delivering for the L/C, each Bank's pro rata participation in such notice or (y) L/C and whether the waiver of such Default or Event of Default in accordance with DIP Agent has classified the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders)L/C as a commercial, the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Creditperformance, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters financial letter of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lenderregulatory reporting purposes.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Original Closing Date and prior to the L/C Maturity Date, the each Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, of the Borrower and for the direct or indirect benefit of, of the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (together with the Existing Letters of Credit, the “Letters of Credit” and each, a “Letter of Credit”) in such form and with such Issuer Documents as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicantapplicant of, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment Sublimit then in effect; , (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the all Lenders’ Revolving Credit Total Exposures at the such time of the issuance thereof to exceed the Total Revolving Credit Commitment Loan Limit then in effect; , (iii) no Letter of Credit in an Alternative Currency shall is required to be issued by a given Letter of Credit Issuer if, as a result of the issuance of such Letter of Credit, (x) the aggregate undrawn Stated Amount of which all outstanding Letters of Credit issued by such Letter of Credit Issuer at such time plus (y) the aggregate amount of all outstanding Unpaid Drawings made by such Letter of Credit Issuer would cause the Aggregate Multicurrency Exposures at the time exceed such Letter of the issuance thereof to exceed the Multicurrency Sublimit then in effect; Credit Issuer’s Letter of Credit Commitment, (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereofor such longer period of time as may be agreed by the applicable Letter of Credit Issuer, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer or as provided under Section 3.2(b); provided that any Letter of Credit may provide for automatic renewal thereof for additional periods of up to 12 months or such longer period of time as may be agreed by the applicable Letter of Credit Issuer, provided subject to the provisions of Section 3.2(b); provided, further, that in no event shall such expiration date occur later than the L/C Maturity Date unless arrangements which are satisfactory to the applicable Letter of Credit Issuer to Cash Collateralize (or backstop) such Letter of Credit have been made (provided, however, that no Lenders shall be obligated to fund participations in respect of any Letter of Credit after the Maturity Date; ), (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; Dollars, (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law Requirement of Law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; favor and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Majority Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice (A) of (x) rescission of such notice from the party or parties originally delivering such notice or notice, (yB) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.113.1 or (C) that such Default or Event of Default is no longer continuing.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment Sublimit in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.Sublimit
(d) [Reserved].
(e) The Notwithstanding anything herein to the contrary, no Letter of Credit Issuer shall not be under have any obligation hereunder to issue issue, and none shall issue, any Letter of Credit if:
the proceeds of which would be made available to any Person (i) to fund any orderactivity or business of or with any Sanctioned Person, judgment or decree in any country or territory that, at the time of such funding, is the subject of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of CreditSanctions, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance in any manner that would result in a violation of such Letter any Sanctions by any party to this Agreement or (iii) in any manner that would result in a violation of Credit would violate one or more policies of the such Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the each Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3Article III, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, account of the Borrower and (or, so long as the Restricted SubsidiariesBorrower is the primary obligor, a letter for the account of credit or any Subsidiary of the Borrower) letters of credit (the “Letters of CreditCredit ” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower . Each letter of credit listed on Schedule 3.1A shall be deemed to constitute a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiaryby JPMorgan Chase Bank, N.A. hereunder.
(b) Notwithstanding the foregoing, (x) no Letter of Credit shall be issued the Stated Amount of which would cause Availability to be less than $0 and (y) (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than the earlier of (x) one year after the date of issuance thereofthereof (except as set forth in Section 3.2(d)) and (y) the L/C Maturity Date; provided that, unless otherwise agreed upon by notwithstanding the Administrative Agent and the foregoing, a Letter of Credit Issuer, provided that in no event shall such may have an expiration date occur (A) occurring later than the L/C Maturity Date to the extent agreed upon by the Administrative Agent, the applicable Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized, the Revolving Credit Lenders and (B) up to one year after the L/C Maturity Date if, not later than ninety (90) days prior to the L/C Maturity Date, the Borrower provides cash collateral acceptable to all Letter of Credit Issuers in an amount equal to 102% of the aggregate face amount available to be drawn under all Letters of Credit with expiration dates after the L/C Maturity Date); (viv) each the Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a any Letter of Credit Issuer after it has received a written notice from any Credit Loan Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the such Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1; (vii) the Letters of Credit Outstanding in respect of JPMorgan Chase Bank, N.A. shall not exceed $40,000,000 at any time without its consent; and (viii) the Letters of Credit Outstanding in respect of Bank of America, N.A. shall not exceed $40,000,000 at any time without its consent.
(c) Upon at least one two Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the applicable Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The No Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the such Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the such Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the such Letter of Credit Issuer shall prohibit, or request that the such Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the such Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which the such Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the such Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the such Letter of Credit Issuer in good xxxxx xxxxx material to itit (in each case, for which such Letter of Credit Issuer is not otherwise compensated hereunder);
(ii) the issuance of such Letter of Credit would violate one or more policies of the such Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the such Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 (or the Dollar Equivalent thereofsuch lower amount as may be agreed to by such Letter of Credit Issuer), in the case of a commercial Letter of Credit, or $10,000 100,000 (or such lower amount as may be agreed to by the Dollar Equivalent thereofLetter of Credit Issuer), in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative CurrencyDollars;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viie) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower has entered into arrangements reasonably satisfactory to such Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the such Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderFronting Exposure.
(f) The No Letter of Credit Issuer shall not amend increase the Stated Amount of any Letter of Credit if the such Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The No Letter of Credit Issuer shall be under no any obligation to amend any Letter of Credit if (A) the such Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Each Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the each Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 Article XI with respect to any acts taken or omissions suffered by the such Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 Article XI included the such Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the such Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Amendment and Restatement Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the New Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Amendment and Restatement Date through the L/C Maturity Date upon the request ofof the Parent Borrower, and for the direct or indirect benefit of, the Borrower Borrowers and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Parent Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted SubsidiarySubsidiary that is not a Borrower.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ New Revolving Credit Exposures at the such time of the issuance thereof to exceed the Total lesser of the Borrowing Base and the New Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (viv) each Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders any Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.114.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Parent Borrower on behalf of the Borrowers shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx fxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof100,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative CurrencyDollars;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any New Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any New Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Parent Borrower or such New Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such New Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the New Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith therewith, and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Credit Agreement (Hca Inc/Tn)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthhereof, at any time and from time to time after from the Original Closing Date and prior to through the L/C date that is thirty (30) days before the Maturity Date, the Issuing Bank shall issue such Letters of Credit denominated in Dollars as a Borrower may request by delivering a Request for Letters of Credit to the Issuing Bank; provided that, giving effect to such Letter of Credit, (i) the aggregate effective face amounts of all outstanding Letters of Credit will not exceed $150,000,000, (ii) the sum of all Advances then outstanding plus the face amount of all Letters of Credit then outstanding plus the sum of all unreimbursed drawings under Letters of Credit shall not exceed the Commitment, and (iii) Total Outstandings will not exceed the Commitment. Letters of Credit issued under the Commitment may be issued for terms up to five (5) years from the date of issuance but in no event shall the term of any such Letter of Credit Issuer agreesextend beyond the Maturity Date. Each Letter of Credit shall be in a minimum amount of $500,000, in reliance upon unless otherwise consented to by the agreements Issuing Bank. The issuance of any Letter of Credit shall constitute usage of the Revolving Credit Lenders Commitment. Subject to the limitations set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit ofherein, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Borrowers may request Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter reimburse drawings under Letters of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter request further Letters of Credit issued for the account of a Restricted Subsidiarywithout premium or penalty.
(b) Notwithstanding the foregoing, (i) no The Issuing Bank shall not Issue any Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Majority Banks, the Administrative Agent or the Required Revolving Credit Lenders stating that a Default Company on or Event prior to the Banking Day prior to the requested date of Default has occurred and is continuing until issuance of such time as the Letter of Credit Issuer shall have received a written notice Credit, that one or more of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment conditions contained in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall Section 8.2 is not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) then satisfied. The Letter of Credit Issuer shall not be Issuing Bank is under any no obligation to issue Issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority Agency or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer Issuing Bank from issuing such Letter of Credit, or any law Requirement of Law applicable to the Letter of Credit Issuer Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority Agency with jurisdiction over the Letter of Credit Issuer Issuing Bank shall prohibit, or request that the Letter of Credit Issuer Issuing Bank refrain from, the issuance of letters Letters of credit Credit generally or such Letter of Credit in particular particular; or
(ii) any requested Letter of Credit is not in form reasonably acceptable to the Issuing Bank, or the issuance of a Letter of Credit shall impose upon violate any generally applicable policies of the Issuing Bank.
(c) Each Request for Letter of Credit shall be submitted to the Issuing Bank at least three (3) Banking Days prior to the date when the issuance of a Letter of Credit is requested. Upon issuance of a Letter of Credit, the Issuing Bank shall promptly notify the Banks of the amount and terms thereof. Any Letter of Credit issued shall conform with the Issuing Bank's generally applicable policies regarding form and substance.
(d) Upon the issuance of a Letter of Credit, each Bank shall be deemed to have irrevocably purchased from the Issuing Bank, without recourse to or warranty from the Issuing Bank, a pro rata undivided participation in the Letter of Credit, in an amount equal to that Bank's Pro Rata Share of the Commitment. Without limiting the scope and nature of each Bank's participation in any Letter of Credit, to the extent that the Issuing Bank has not been reimbursed by the Borrower, in accordance with Section 2.6(e), for any payment made by the Issuing Bank under any Letter of Credit, each Bank shall reimburse the Issuing Bank promptly upon demand for the amount of such payment in accordance with its Pro Rata Share of the Commitment, as the case may be. The obligation of each Bank to so reimburse the Issuing Bank shall be absolute and unconditional and shall not be affected by the occurrence of an Event of Default or any other occurrence or event. Any such reimbursement shall not relieve or otherwise impair the obligation of the Borrower to reimburse the Issuing Bank for the amount of any payment made by the Issuing Bank under any Letter of Credit Issuer together with respect interest as hereinafter provided.
(e) After any drawing on a Letter of Credit, the Issuing Bank shall notify the applicable Borrower and the Administrative Agent by telephone or telecopier of such drawing by 2:00 p.m., New York time, on the date such payment is to be made and the Borrower shall reimburse the Issuing Bank, in immediately available funds for any amount paid or to be paid by the Issuing Bank under such Letter of Credit any restrictionby 4:00 p.m., reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect New York time on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lendernotice.
(f) The Letter If the applicable Borrower fails to make the payment required by Section 2.6(e), the Administrative Agent shall notify the Banks by telephone or telecopier (the method of Credit Issuer notification shall be at the Administrative Agent's option) of the unreimbursed amount of such payment. Each Bank irrevocably and unconditionally agrees (irrespective of the occurrence of an Event of Default or any other circumstance) that it shall make available to the Administrative Agent (for the account of the applicable Issuing Bank) an amount equal to its respective participation in same day funds, at the Administrative Agent's Office, not amend later than the close of business (New York time) on the date notified by the Administrative Agent. In the event that any Letter Bank fails to make available to the Administrative Agent the amount of Credit if the Letter of Credit Issuer would not be permitted at such time to issue Bank's participation in such Letter of Credit as provided above, the Issuing Bank (through the Administrative Agent) shall be entitled to recover such amount on demand from such Bank together with interest thereon, for each day from the date of such payment until the date such amount is paid to the Issuing Bank, at the rate per annum equal to the Base Rate plus 1%; provided that if such failure is solely the result of an administrative error (which determination shall be made by the Administrative Agent in its amended form sole discretion) or is solely the result of the Bank receiving notice too late in the day to make payment to the Administrative Agent on that day, then the interest rate for the first day of such delay shall be the overnight federal funds rate. Any amount made available by a Bank to the Administrative Agent as such Bank's participation in such Letter of Credit shall constitute a demand loan to the Borrower bearing interest at a rate per annum equal to (i) from the date of any payment made by the Issuing Bank through the date ten days after such payment, the Base Rate, and (ii) thereafter, the Base Rate plus 2%; provided, that if a Bank is prevented from making such demand loans by the provisions of the United States Bankruptcy Code or otherwise, the amount so paid to the Issuing Bank by such Bank shall constitute a funding and purchase by it of a participation in such Letter of Credit disbursement by the Issuing Bank and all obligations of the Borrower with respect thereto, including interest thereon to the extent accruing from the date of such purchase. The Administrative Agent shall promptly pay to the Issuing Bank all funds paid by the Banks to reimburse the Issuing Bank for the payment made by it under the terms hereofLetter of Credit.
(g) The Letter issuance of Credit Issuer shall be under no obligation any supplement, modification, amendment, renewal, or extension to amend or of any Letter of Credit if (A) shall be treated for the Letter purposes of Credit Issuer would have no obligation at such time to issue such Letter Article 8 the same as the issuance of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such a new Letter of Credit.
(h) The If, for any reason, a Bank fails to pay its liability on a Letter of Credit Issuer in accordance with the provisions of Section 2.6(f), then the Issuing Bank shall act be automatically subrogated to the right of such defaulting Bank to any prepayment, in full, of any loan created by virtue of a drawing on such Letter of Credit, or such defaulting Bank's right to any reimbursement by the Borrower with respect to any drawing, or any other right of such defaulting Bank in connection with or resulting from the drawing on such Letter of Credit, prior to distribution of any payments hereunder to the defaulting Bank.
(i) The obligation of the Borrowers to reimburse the Issuing Bank for the amount of any payment made by the Issuing Bank under any Letter of Credit, and the obligations of the Banks under their respective participations under the Letters of Credit, shall be absolute, unconditional, and irrevocable and shall not be affected by any of the following circumstances:
(i) any lack of validity or enforceability of the Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;
(ii) any amendment or waiver of or any consent to departure from the Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;
(iii) the existence of any claim, setoff, defense, or other rights which any Borrower may have at any time against any Bank, any beneficiary of the Letter of Credit (or any persons or entities for whom any such beneficiary may be acting) or any other Person, whether in connection with the Letter of Credit, this Agreement, or any other agreement or instrument relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document presented under the Letter of Credit proving to be forged, fraudulent, invalid, or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever so long as any such document appeared to comply with the terms of the Letter of Credit;
(v) the solvency or financial responsibility of any party issuing any documents in connection with a Letter of Credit;
(vi) any failure or delay in notice of shipments or arrival of any property;
(vii) any error in the transmission of any message relating to a Letter of Credit not caused by the Issuing Bank, or any delay or interruption in any such message;
(viii) any error, neglect or default of any correspondent of any Bank in connection with a Letter of Credit;
(ix) any consequence arising from acts of God, war, insurrection, disturbances, labor disputes, emergency conditions or other causes beyond the control of the Issuing Bank;
(x) so long as the Issuing Bank in good faith determines that the draft, contract or document appears to comply with the terms of the Letter of Credit, the form, accuracy, genuineness or legal effect of any contract or document referred to in any document submitted to the Issuing Bank in connection with a Letter of Credit; and
(xi) where the Issuing Bank has acted in good faith and without gross negligence or willful misconduct and observed general banking usage, any other circumstance whatsoever.
(j) the Issuing Bank shall be entitled to the protection accorded to the Administrative Agent pursuant to Section 10.6, mutatis mutandis.
(k) As between the Borrower and the Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by, the respective beneficiaries of the Letters of Credit. In furtherance and not in limitation of the foregoing, the Issuing Bank shall not be responsible: (1) for the validity, genuineness or legal effect of any document submitted by any party in connection with the issuance of or any drawing under the Letters of Credit, even if it should in fact prove to be in any or all respects invalid, fraudulent or forged; (2) for the validity or sufficiency 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; (3) for errors in interpretation of technical terms; (4) for the misapplication by the beneficiary of any Letter of Credit of the proceeds of any drawing under such Letter of Credit; provided that none of the events set forth in the foregoing clauses (1) through (4) shall have been caused by the gross negligence or willful misconduct of the Issuing Bank; and (5) for any consequences arising from causes beyond the control of the Issuing Bank. None of the above shall affect, impair, or prevent the vesting of any of the Issuing Bank's rights or powers hereunder. In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by an Issuing Bank under or in connection with the Letters of Credit, if taken or omitted in good faith, without gross negligence or willful misconduct, shall not put the Issuing Bank under any resulting liability to the Borrowers or the Banks.
(l) The Issuing Bank shall have no obligation whatsoever to make any factual or legal determinations as to the correctness of any demand or payment under any Letter of Credit strictly complying with the terms of such Letter of Credit before the Issuing Bank makes any payment under the Letter of Credit. The Borrowers and the Banks hereby waive (A) diligence, presentment, demand, protest or notice of any kind, (B) any requirement that the Issuing Bank exhaust any right or remedy against the Borrowers, the Administrative Agent, any other participant in the credit, or any other Person, and (C) any claim or defense based on any time or other indulgence granted to the Borrower, the Administrative Agent or any other Person and any right of subrogation to any rights or remedies of the Issuing Bank in respect of any of the Letters of Credit or any defense that the Issuing Bank has impaired any such right of subrogation.
(m) In the event that any payment made by or on behalf of the Revolving Credit Lenders Borrower pursuant to or in connection with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all is rescinded or must otherwise be restored or returned to the Borrower or other relevant party, as applicable, including as a result of any insolvency, bankruptcy or reorganization or similar proceedings in respect of the benefits Borrower, the obligations of the Banks under this Section 2.6(m) in respect of such rescinded, restored or returned payment shall be reinstated in full and immunities the Banks shall be liable to indemnify the Issuing Bank hereunder as fully as if such payment had never been made. The provision of this Section 2.6(m) shall survive the payment of the obligations of the Borrowers under the Letters of Credit.
(An) provided All amounts to be paid to the Issuing Bank by the Banks under this Agreement shall be paid by the Banks to the Administrative Agent in Section 13 with respect to for the account of the Issuing Bank, without any acts taken set-off or omissions suffered by the Letter counterclaim whatsoever and free and clear of Credit Issuer in connection with Letters any without deduction for or on account of Credit issued by it any taxes, duties or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissionsother charges whatsoever, and (B) as additionally provided herein with respect to the Letter of Credit Issuerwithout any liability therefor.
Appears in 1 contract
Samples: Credit Agreement (Amgen Inc)
Letters of Credit. (a) Subject to and upon the terms and ----------------- conditions herein set forth, the Borrower may request that any Issuing Bank issue, at any time and from time to time on and after the Original Closing Effective Date and prior to the L/C Tranche A Revolving Loan Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of the Borrower and for the benefit of any holder (or any trustee, agent or other similar representative for any such holders) of L/C Supportable Indebtedness of the Borrower or any of its Subsidiaries that are Guarantors, an irrevocable standby letter of credit, in a Restricted Subsidiaryform customarily used by such Issuing Bank or in such other form as has been approved by such Issuing Bank (each such standby letter of credit, a "Letter of Credit") in support of ---------------- such L/C Supportable Indebtedness.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters Letter of Credit Outstanding Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the respective Letter of Credit) at such time would exceed either (x) $10,000,000 or (y) when added to the aggregate principal amount of all Tranche A Revolving Loans and Swingline Loans made by Non- Defaulting Banks and then outstanding, an amount equal to the Adjusted Total Tranche A Revolving Loan Commitment at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration by its terms terminate on or before, the date occurring no later than one year which occurs 12 months after the date of the issuance thereof, unless otherwise agreed upon by thereof but not beyond the Administrative Agent and the 30th day prior to Revolving Loan Maturity Date (although any such Standby Letter of Credit Issuermay be extendible for successive periods of up to 12 months, provided that in no event shall such expiration date occur later than but not beyond the L/C 30th day prior to Revolving Loan Maturity Date; ), on terms acceptable to the Issuing Bank thereof) and (viii) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit and shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have on a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1sight basis.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Parent Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Parent Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit Credit, other than the UK Pension Letter of Credit, shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that that, except in the case of the UK Pension Letter of Credit, in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders any Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.114.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Parent Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved]The parties hereto agree that the Existing Letters of Credit shall be deemed to be Letters of Credit for all purposes under this Agreement, without any further action by the Parent Borrower, the Letter of Credit Issuer or any other Person.
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunderhere-under) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereofof $100,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunderthere-under; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunderhere-under, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Parent Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after on and from the Original Closing Restatement Effective Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, Issuers agree to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, of the Borrower Borrowers and the Restricted Subsidiaries, a letter of credit or Subsidiaries standby letters of credit in US Dollars or any Alternative Currency (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the such Letter of Credit Issuer in its reasonable discretion; provided that the Borrower Company shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would (x) exceed the L/C Sublimit then in effect or (y) cause the aggregate amount of Letters of Credit issued by the applicable Letter of Credit Commitment then in effectIssuer to exceed such Letter of Credit Issuer’s L/C Fronting Commitment; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the such time of the issuance thereof to exceed the Total Revolving Credit Commitment Commitments then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than the earlier of (x) one (1) year after the date of issuance thereofthereof and (y) the L/C Maturity Date, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit IssuerIssuer but may by its terms be automatically extended for additional twelve (12) month periods, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (viv) each Letter of Credit shall be denominated in US Dollars or an any Alternative Currency; and (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary Law or is prohibited by any order, judgment, decree of any Governmental Authority or arbitrator which, by its terms, purports to enjoin or restrain the Letter of Credit to have a Issuer from issuing such Letter of Credit issued or any request or directive (whether or not having the force of Law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in its favorparticular; and (viivi) without limiting Section 7.1, no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders any Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.113.2; and (vii) no Letter of Credit shall be issued if the issuance of such Letter of Credit would violate any polices of the relevant Letter of Credit Issuer that are applicable to letters of credit issued by such Letter of Credit Issuer generally.
(c) Upon at least one three (3) Business Day’s Days’ prior written notice to the Administrative Agent and the applicable Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to each of the applicable Lenders) (or telephonic notice promptly confirmed in writing) such shorter period agreed to by the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable LendersIssuer), the a Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment L/C Sublimit in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit CommitmentL/C Sublimit.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Revolving Credit Agreement (NXP Semiconductors N.V.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, agrees to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, account of the Borrower Company and the Restricted Subsidiaries, a letter of credit or Subsidiaries letters of credit in Dollars (the “Letters of Credit” “ and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower Company shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Lender’s Revolving Credit Exposures at the such time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (viv) each Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; (vi) no Letter of Credit shall be issued if such Letter of Credit is not in form reasonably acceptable to the Letter of Credit Issuer, and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or Party, the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.115.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower Company shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except Except as otherwise agreed by between the Administrative Agent Borrower and the Letter of Credit Issuer, such each Letter of Credit is in an initial Stated Amount less (other than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a each standby Letter of Credit;
), shall be subject to the Uniform Customs and Practice for Documentary Credits (iv) such Letter 1993 Revision), International Chamber of Credit is denominated Commerce Publication No. 500, as from time to time amended, and to the extent not inconsistent therewith, shall also be subject to the New York Uniform Commercial Code as in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not effect from time to time. Except as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with otherwise agreed between the Borrower or such Revolving Credit Lender to eliminate and the Letter of Credit Issuer’s risk with respect , each standby Letter of Credit shall be subject to such Revolving Credit LenderThe International Standby Practices (ISP98 — International Chamber of Commerce Publication No. 590), as from time to time amended, and to the extent not inconsistent therewith, shall also be subject to the New York Uniform Commercial Code as in effect from time to time.
(fe) The Letter of Credit Issuer shall not amend any Letter of Credit if parties hereto agree that the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Existing Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with be deemed Letters of Credit issued for all purposes under this Agreement, without any further action by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerCompany.
Appears in 1 contract
Samples: First Lien Credit Agreement (IPC Systems Holdings Corp.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, The Issuing Bank agrees at any time on or after the First Escrow Release Date, and from time to time after on the Original Closing Date terms and prior to conditions of this Agreement, upon receipt from the L/C Maturity Date, the Letter Borrowers of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3an Issuance Request, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued on behalf of any Borrower on the date and in its favorthe amount set forth in such Issuance Request; and provided, that (viii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not may only be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer for issued Plants with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, initial Funding has been made (or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) will be made simultaneously with the issuance of such Letter of Credit would violate one or more policies Credit), (ii) the aggregate Stated Amounts of the Letter all issued and outstanding Letters of Credit Issuer applicable to letters of credit generally;
shall not exceed the LC Cap and (iii) except as otherwise agreed by the aggregate Stated Amount of all issued and outstanding Letters of Credit plus the aggregate outstanding principal amount of all Working Capital Loans at any one time outstanding shall not exceed the Aggregate Working Capital Loan Commitment or the then-applicable Working Capital Loan Availability.
(b) The Borrower shall give the Administrative Agent and at least five (5) Business Days irrevocable prior written notice (such notice, in substantially the Letter form of Credit IssuerExhibit 2.04, such an "Issuance Request") (effective upon receipt) specifying the date (which shall be a day that is no later than thirty (30) days preceding the Working Capital Maturity Date) a Letter of Credit is requested to be issued, describing in an initial reasonable detail the nature of the transactions or obligations proposed to be supported thereby (which shall be of the nature described in Section 2.04(i)(iii)) and the Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial such Letter of Credit, or which shall be no less than four hundred thousand Dollars ($10,000 or 400,000)). Upon receipt of an Issuance Request, the Dollar Equivalent thereof, in Administrative Agent shall promptly advise the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as Issuing Bank of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lendercontents thereof.
(fc) The Letter Each Working Capital Lender (other than the Issuing Bank) agrees that, upon the issuance of Credit Issuer shall not amend any Letter of Credit if hereunder, it shall automatically acquire a participation in the Letter Issuing Bank's liability thereunder in an amount equal to such Lender's Working Capital Loan Commitment Percentage of Credit Issuer would such liability, and each Working Capital Lender (other than the Issuing Bank) thereby shall absolutely, unconditionally and irrevocably assume, as primary obligor and not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer as surety, and shall be unconditionally obligated to the Issuing Bank to pay and discharge when due, its Working Capital Loan Commitment Percentage of the Issuing Bank's liability under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such each Letter of Credit.
(hd) The Upon receipt from a beneficiary under a Letter of Credit Issuer of a demand for payment thereunder, in proper form to accomplish a draw in accordance with the terms thereof, the Issuing Bank (through the Administrative Agent) shall act on behalf promptly notify each other Working Capital Lender and the Borrowers of the Revolving Credit Lenders with respect amount to any Letters be paid by the Issuing Bank as a result of Credit issued by it such demand and the documents associated therewith and date on which payment is to be made by the Issuing Bank to such beneficiary in respect of such demand. Immediately following such demand by a beneficiary of payment under a Letter of Credit Issuer Credit, the Administrative Agent shall have all give each Working Capital Lender prompt notice of the benefits and immunities amount of the actual demand for payment, specifying such Lender's Working Capital Loan Commitment Percentage of the amount of such demand.
(Ae) provided Upon receipt by the Issuing Bank of a demand as described in Section 2.04(d), each Working Capital Lender (other than the Issuing Bank) shall pay to the Administrative Agent for the account of the Issuing Bank in Section 13 with respect to Dollars and in immediately available funds the amount of such Lender's Working Capital Loan Commitment Percentage of any acts taken or omissions suffered by payment under the Letter of Credit Issuer in connection with Letters Credit. Each Working Capital Lender's obligation to make such payments to the Administrative Agent for account of Credit issued the Issuing Bank under this Section 2.04(e), and the Issuing Bank's right to receive the same, shall be absolute and unconditional and shall not be affected by it any circumstance whatsoever, including (i) the failure of any other Working Capital Lender to make its payment under this Section 2.04(e), (ii) the financial condition of the Borrowers, (iii) the existence of any Default or proposed Event of Default or (iv) the termination of the Commitments. Each such payment to the Issuing Bank shall be made without any offset, abatement, withholding or reduction whatsoever.
(f) To the extent that any Working Capital Lender fails to pay any amount required to be issued by it and Issuer Documents pertaining paid pursuant to Section 2.04(e) on the date such Letters of Credit as fully as if amounts are due to be paid, such Lender shall pay interest to the term “Issuing Bank (through the Administrative Agent” as used ) on such amount from and including such due date to but excluding the date such payment is made at a rate per annum equal to the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in Section 13 included accordance with banking industry rules on interbank compensation plus (in either such case) two percent (2%).
(g) Each drawing honored by the Issuing Bank under a Letter of Credit Issuer with respect to shall reduce the Maximum Available Amount under such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuerby the amount of such drawing.
(h) Notwithstanding anything herein to the contrary (including Section 6.08 (
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Each Letter of Credit shall be issued (or the Stated Amount stated maturity thereof extended or terms thereof modified or amended) for the account of whichthe Company, when added Enterprises or a Subsidiary of Enterprises (in which case each Borrower and such Subsidiary shall be coapplicants with respect to such Letter of Credit) on not less than three (3) Business Days' prior written notice thereof to the Letters Administrative Agent (which shall promptly distribute copies thereof to the Lenders) and the relevant Issuing Bank and shall be denominated in Dollars or in an Alternative Currency. Each such notice (a "REQUEST FOR ISSUANCE") shall be delivered no later than 12:00 noon (New York City time) on the third Business Day prior to the proposed date of Credit Outstanding at issuance, extension, modification or amendment and shall specify (i) the date (which shall be a Business Day) of issuance of such time, would exceed the Letter of Credit Commitment then in effect; (iior the date of effectiveness of such extension, modification or amendment) subject to clause and the stated expiry date thereof (f) below, no Letter of Credit which shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than the earlier of the date that is five (5) Business Days (or, in the case of any commercial Letter of Credit, thirty (30) Business Days) prior to the Commitment Termination Date and the date which is one year after the requested date of issuance thereofissuance, provided that any Letter of Credit with a one year tenor may provide for the renewal thereof for additional periods of up to one year which shall in no event extend beyond the date which is five (5) Business Days (or, in the case of any commercial Letter of Credit, thirty (30) Business Days) prior to the Commitment Termination Date), (ii) the proposed stated amount of such Letter of Credit (which shall not be less than $100,000 (or the Dollar Equivalent thereof in an Alternative Currency) unless otherwise agreed upon by the Administrative Agent and applicable Issuing Bank), (iii) the Letter of Credit Issuer, provided that currency in no event shall which such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in (which currency shall be Dollars or an Alternative Alternate Currency; ), (viiv) no the identity of the applicable Borrower and (v) 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 issued if it would be illegal under any irrevocable unless modified or rescinded by the applicable law Borrower in writing not less than two (2) Business Days prior to the proposed date of issuance (or effectiveness) specified therein. Not later than 12:00 noon (New York City time) on the proposed date of issuance (or effectiveness) specified in such Request for the beneficiary 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 have the Administrative Agent, which shall promptly furnish copies thereof to the Lenders.
(b) Schedule III contains a schedule of certain letters of credit issued for the account of the Company prior to the Closing Date. Subject to the satisfaction of the applicable conditions contained in Article VI, from and after the Closing Date such letters of credit shall be deemed to be Letters of Credit issued pursuant to this Article IV for all purposes hereunder (each such Letter of Credit, a "TRANSITIONAL LETTER OF CREDIT"). For purposes of clarification, each term or provision applicable to the issuance of a Letter of Credit issued in its favor; and (viiincluding conditions applicable thereto) no Letter shall be deemed to include the deemed issuance of the Transitional Letters of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or on the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1Closing Date.
(c) Upon at least one Business Day’s prior written notice Each Lender severally agrees with each Issuing Bank to participate in the Extension of Credit resulting from the issuance or deemed issuance (or telephonic notice promptly confirmed in writingextension, modification or amendment) to the Administrative Agent and the of each Letter of Credit Issuer issued or deemed issued (which or extended, amended or modified) pursuant to this Section 4.02 in the Administrative Agent shall promptly notify manner and the applicable Lendersamount provided in Section 4.04(b), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, and the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the deemed issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable shall be deemed to letters of credit generally;
(iii) except as otherwise agreed be a confirmation by the Administrative Agent each Issuing Bank and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date each Lender of such requested Letter of Credit issue letters of credit participation in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lenderamount.
(fd) The Letter of Credit Issuer Notwithstanding anything herein to the contrary, no Issuing Bank shall not have any obligation to, and no Issuing Bank shall, issue, extend, amend or modify any Letter of Credit if on the Letter date of Credit Issuer would not be permitted such issuance, extension, amendment or modification, before or after giving effect thereto, (i) the Total Outstandings at such time to issue such Letter of Credit in its amended form under would exceed the terms hereof.
Commitments, (g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (Aii) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf Dollar Equivalent of the Revolving Credit Lenders aggregate LC Outstandings with respect to any Letters of Credit issued by it and denominated in euros would exceed the documents associated therewith and Euro Sublimit or (iii) the Letter of Credit Issuer shall have all Dollar Equivalent of the benefits and immunities (A) provided to the Administrative Agent in Section 13 aggregate LC Outstandings with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if denominated in Indian Rupees would exceed the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerIndian Rupee Sublimit.
Appears in 1 contract
Samples: Credit Agreement (CMS Energy Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have have
received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Credit Agreement (First Data Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) (b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Credit Agreement (First Data Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthhereof, at the Issuing Lender agrees to issue, amend, renew or extend Letters of Credit denominated in Dollars during the Commitment Period (i) in a minimum amount of $10,000 on the date of such issuance, amendment, renewal or extension and (ii) for the account of the Account Party on any time and Business Day during the Commitment Period in such forms as may be approved from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretionIssuing Lender; provided that the Borrower Issuing Lender shall be a co-applicantnot issue, and jointly and severally liable with respect toamend, each renew or extend any Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoingif, after giving effect to such issuance, amendment, renewal or extension, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding Amount at such time, would exceed the Letter of Credit Commitment then in effect; at such time or (ii) subject to clause (f) below, no the Account Balance would be less than 103% of the Outstanding Amount at such time. Each Letter of Credit shall (i) be issued denominated in Dollars, and (ii) expire on the Stated Amount earlier of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iiix) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereofand (y) the last day of the Commitment Period; provided that any Letter of Credit with a one year term may provide for the renewal thereof for additional one year periods (which shall in no event extend beyond the date referred to in clause (y) above).
(b) Any Letter of Credit, unless which by its terms is automatically renewable for a given period of time will provide that notice from the Issuing Lender may be given to the beneficiary thereof that such Letter of Credit will not be renewed at its maturity upon 30 days prior written notice. On the Outside Date, the Account Party shall pay in cash all Obligations that are then due and payable and, if any obligations under any Letter of Credit, whether or not then due and payable, are outstanding on such date, the Account Party will cause all such Letters of Credit to either be (i) cancelled and returned on or prior to the Outside Date or (ii) cash collateralized or otherwise agreed backstopped in a manner satisfactory to the Issuing Lender in its reasonable discretion.
(c) The Account Party shall have the right, upon by not less than three Business Days’ notice to the Administrative Agent and Issuing Lender, to terminate the Letter of Credit IssuerCommitment or, provided that in no event shall such expiration date occur later than from time to time, to reduce the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary aggregate amount of the Letter of Credit to have a Letter Commitment; provided that no such termination or reduction of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided thatshall be permitted if, after giving effect to thereto, (i) the Account Balance would be less than 103% of the Outstanding Amount at such termination time or reduction, (ii) the Letters of Credit Outstanding shall not Stated Amount would exceed the Letter of Credit Commitment. Any such reduction shall be in a minimum amount equal to $500,000, or any whole multiple of $1,000,000 in excess thereof, and shall reduce permanently the Letter of Credit Commitment then in effect.
(d) [Reserved]Letters of Credit shall be used solely to fund the working capital needs and general corporate purposes of the Account Party and its Subsidiaries (including, without limitation, to support any interest rate, currency, commodity or other hedging agreements or other derivative obligations of such Persons); but may not, in any event, be issued in respect of any antecedent debt, as such phrase is used in the Bankruptcy Code, that is not secured.
(e) The Letter of Credit Issuer Issuing Lender shall not at any time be under any obligation obligated to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing hereunder if such Letter of Creditissuance would conflict with, or any law applicable to cause the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Issuing Lender to eliminate the Letter exceed any limits imposed by, any applicable Requirement of Credit Issuer’s risk with respect to such Revolving Credit LenderLaw.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Collateral Agreement (Dynegy Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders)contained herein, the Borrower shall have the right, on any day, permanently right to terminate utilize a portion of the Revolving Commitment from time to time prior to the Revolving Loan Maturity Date to obtain from the Lender one or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the more Letters of Credit Outstanding for the account of the Borrower in such amounts and in favor of such beneficiaries as the Borrower from time to time shall not exceed request; provided, that in no event shall the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under Lender have any obligation to issue any Letter of Credit if:
if (i) any order, judgment or decree the face amount of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to plus the Letter of Credit Issuer or any request or directive Exposure Amount at such time would exceed $500,000, (whether or not having ii) the force face amount of law) from any Governmental Authority with jurisdiction over the such Letter of Credit Issuer shall prohibitCredit, plus the aggregate of the Lender's Current Sum at such time, would exceed the lesser of (1) the Revolving Commitment or request that (2) the Letter of Credit Issuer refrain fromAvailability, the issuance of letters of credit generally or (iii) such Letter of Credit in particular or shall impose upon would have an expiry date beyond the Letter earlier to occur of Credit Issuer with respect (1) one month prior to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing scheduled Revolving Loan Maturity Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii2) 90 days after the issuance date of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, if such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial documentary sight Letter of Credit, Credit or $10,000 or (3) 365 days after the Dollar Equivalent thereof, in the case issuance date of such Letter of Credit if such Letter of Credit is a standby Letter of Credit;
, (iv) such Letter of Credit is denominated not in a currency other than Dollars or an Alternative Currency;
form and does not contain terms satisfactory to the Lender in its sole and absolute discretion, (v) the Borrower have not executed and delivered such Applications and other instruments and agreements relating to such Letter of Credit Issuer does not as the Lender shall have requested, or (vi) an event has occurred and is continuing which constitutes a Default or Event of Default.
(b) If requesting the issuance date of such requested any Letter of Credit, the Borrower shall give at least three (3) Business Days' prior written notice to the Lender, at its Domestic Lending Office, which written notice shall be the requisite Application for a Letter of Credit issue letters of credit in on the requested currency;Lender's customary form.
(vic) The Borrower promises to pay to the order of the Lender the amount of all Letter of Credit Advances. To effect repayment of any such Letter of Credit Advance, the Lender shall automatically satisfy such Letter of Credit Advance (subject to the terms and conditions of Sections 2.1 and 5.1 hereof) by making a Revolving Loan if (i) such Letter of Credit contains any provisions for automatic reinstatement Advance is (and such Revolving Loan is to be) made prior to the Revolving Loan Maturity Date, (ii) the Availability would be equal to or greater than zero after giving effect to such Revolving Loan and (iii) no Default or Event of Default shall have occurred which is then continuing. If the Stated Amount after any drawing thereunder; or
(vii) Lender does not make a default of any Revolving Credit Lender’s obligations Loan to fund under Section 3.3 exists or any Revolving Credit Lender is at satisfy such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with Advance, each such letter of Credit Advance shall be considered for all purposes as a demand obligation owing by the Borrower or such Revolving Credit Lender to eliminate the Lender, and each Letter of Credit Issuer’s risk Advance shall bear interest from the date thereof at the Past Due Rate, without notice of presentment, demand, protest or other formalities of any kind (said past due interest on such Letter of Credit Advance being payable on demand). The failure of the Lender to affect repayment of any such Letter of Credit Advance in accordance with the preceding sentences shall not in any way whatsoever affect the Borrower's obligation to pay each Letter of Credit Advance on demand and to pay interest at the Past Due Rate on the amount of unreimbursed Letter of Credit Advance. All rights, powers, benefits and privileges of this Agreement with respect to the Revolving Note, all security therefor (including the Collateral) and guaranties thereof (including the Guaranties) and all restrictions, provisions for repayment or acceleration and all other covenants, warranties, representations and agreements of the Borrower contained in this Agreement with respect to the Revolving Note shall apply to such Revolving Letter of Credit Advances.
(d) In consideration of the issuance of each Letter of Credit pursuant to the provisions of this Section 2.10, the Borrower agrees to pay (subject to Section 10.6 hereof) to the Lender a letter of credit fee (computed on the basis of the actual number of days elapsed in a year composed of 360 days) in an amount equal to, (i) with respect to each documentary letter of credit, the product of (a) the Applicable Margin in effect for LIBOR Borrowings for the applicable period times (b) the undrawn upon amount of the applicable Letter of Credit, and (ii) with respect to each standby letter of credit, the product of (a) the Applicable Margin in effect for LIBOR Borrowings for the applicable period plus 200 basis points times (b) the undrawn upon amount of the applicable Letter of Credit, with each letter of credit fee to commence to accrue as of the date of issuance of such Letter of Credit and to be effective as to any reductions in the undrawn amount of such Letter of Credit as of the date of any such reduction (whether resulting from payments thereunder by the Lender, by agreement of the beneficiary thereunder or automatically by the terms of such Letter of Credit), and each letter of credit fee shall cease to accrue (except with respect to interest at the Past Due Rate on any unpaid portion thereof) on the date that such Letter of Credit expires, is returned to the Lender undrafted upon by the beneficiary thereof or is fully paid by the Lender. Said letter of credit fees shall be payable in arrears to the Lender at its Principal Office in immediately available funds (i) on the first Business Day of each calendar month that such Letter of Credit remains open, and (ii) on the date that such Letter of Credit expires, is returned to the Lender undrafted upon by the beneficiary thereof or is fully paid by the Lender. All past due letter of credit fees shall bear interest at the Past Due Rate and shall be payable upon demand by the Lender. The Borrower also hereby agrees to pay to the Lender any and all other issuance, amendment, negotiation, and other normal and customary fees which are charged by the Lender in connection with the issuance or negotiation of any of Letter of Credit and the presentation or payment of any draw under any such Letter of Credit, with all of such amounts being due and payable to the Lender upon demand.
(e) The obligations of the Borrower under this Agreement in respect of the Letters of Credit and all Letter of Credit Advances are absolute, unconditional and irrevocable, shall be paid strictly in accordance with the terms of this Agreement, under all circumstances whatsoever, including the following circumstances:
(1) any lack of validity or enforceability of this Agreement, any Letter of Credit or any Loan Document;
(2) any amendment or waiver of default under or any consent to departure from the terms of this Agreement or any Letter of Credit without the express prior written consent of the Lender;
(3) the existence of any claim, set-off, defense or other right which any beneficiary or any transferee of any Letter of Credit (or any entities for whom any such beneficiary or any such transferee may be acting), or any Person (other than the Lender) may have, whether in connection with this Agreement, the Letters of Credit, the transactions contemplated hereby or any unrelated transaction;
(4) any statement, draft, certificate, or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever; provided that the Lender will examine each document presented under each Letter of Credit to ascertain that such document appears on its face to comply with the terms thereof; and
(5) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing. In the event that any restriction or limitation is imposed upon or determined or held to be applicable to the Lender or the Borrower by, under or pursuant to any Legal Requirement now or hereafter in effect or by reason of any interpretation thereof by any Governmental Authority, which in the respective sole judgment of the Lender would prevent the Lender from legally incurring liability under a Letter of Credit issued or proposed to be issued hereunder, then the Lender shall give prompt written notice thereof to the Borrower, whereupon the Lender shall have no obligation to issue any additional Letters of Credit then or at any time thereafter. In addition, if as a result of any Regulatory Change which imposes, modifies or deems applicable (x) any tax, reserve, special deposit or similar requirement against any Letters of Credit issued or participated to by the Lender, (y) any fee, expense or assessment against the Letters of Credit issued by the Lender for deposit insurance, or (z) any other charge, expense or condition which increases the actual cost to the Lender of issuing or maintaining such Letters of Credit, or reduces any amount receivable by the Lender hereunder in respect of any Letter of Credit or any participation therein (which increase in cost, or reduction in amount receivable, shall be the result of the Lender's reasonable allocation of the aggregate of such increases or reductions resulting from such event), then the Borrower (subject to Section 10.6 hereof) shall pay to the Lender, upon demand and from time to time, amounts sufficient to compensate such Person for each such increase from the effective date of such increase to the date of demand therefor. Each such demand shall be accompanied by a certificate setting forth in reasonable detail the calculation of the amount then being demanded in accordance with the preceding sentence and each such certificate shall be conclusive absent manifest error.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereofTHE BORROWER HEREBY INDEMNIFIES AND HOLDS HARMLESS LENDER FROM AND AGAINST ANY AND ALL CLAIMS AND DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES WHICH LENDER MAY INCUR (OR WHICH MAY BE CLAIMED AGAINST LENDER BY ANY PERSON WHATSOEVER) IN CONNECTION WITH THE EXECUTION AND DELIVERY OR TRANSFER OF OR PAYMENT OR FAILURE TO PAY UNDER ANY LETTER OF CREDIT; PROVIDED, THAT THE BORROWER SHALL NOT BE REQUIRED TO INDEMNIFY LENDER FOR ANY CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES TO THE EXTENT, BUT ONLY TO THE EXTENT, CAUSED BY (I) THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE PARTY SEEKING INDEMNIFICATION OR (II) LENDER'S FAILURE TO PAY UNDER ANY LETTER OF CREDIT AFTER THE PRESENTATION TO IT OF A REQUEST REQUIRED TO BE PAID UNDER APPLICABLE LAW. NOTHING IN THIS SECTION 2.10(F) IS INTENDED TO LIMIT THE OBLIGATIONS OF THE BORROWER UNDER ANY OTHER PROVISION OF THIS AGREEMENT.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request ofof the Parent Borrower, and for the direct or indirect benefit of, the Borrower Borrowers and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Parent Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted SubsidiarySubsidiary that is not a Borrower.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the such time of the issuance thereof to exceed the Total lesser of the Borrowing Base and the Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (viv) each Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders any Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.114.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Parent Borrower on behalf of the Borrowers shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx fxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof100,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative CurrencyDollars;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Parent Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith therewith, and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Credit Agreement (Hca Inc/Tn)
Letters of Credit. (ai) Subject to and upon Upon the terms and subject to the conditions herein set forthhereof, at any time and each Issuing Lender agrees to issue standby Letters of Credit payable in Dollars from time to time after the Original Closing Date and prior to the earlier of the Maturity Date and the termination of the Commitments, upon the request of the Borrower, provided that (A) the Borrower shall not request that any Letter of Credit be issued if, after giving effect thereto, the sum of the then current L/C Maturity DateExposure plus the aggregate Loans then outstanding would exceed the Total Commitment, the (B) in no event shall any Issuing Lender issue (x) any Letter of Credit Issuer agreeshaving an expiration date later than five Business Days before the Maturity Date or (y) any Letter of Credit having an expiration date more than one year after its date of issuance, provided that any Letter of Credit with a one-year tenor may provide for the renewal thereof for additional one-year periods (which shall in reliance upon no event extend beyond the agreements date referred to in clause (x) above), (C) the Borrower shall not request that an Issuing Lender issue any Letter of Credit (other than the Revolving Credit Lenders set forth in this Section 3Settlement Letter of Credit) if, after giving effect to issue from time to time from the Original Closing Date through such issuance, the L/C Maturity Date Exposure would exceed $250,000,000, and (D) an Issuing Lender shall be prohibited from issuing Letters of Credit hereunder upon the request of, occurrence and for during the direct or indirect benefit of, continuance of an Event of Default.
(ii) Immediately upon the Borrower and the Restricted Subsidiaries, a letter issuance of credit or letters of credit (the “Letters of Credit” and each, a “each Letter of Credit”) , each Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from the applicable Issuing Lender, a participation in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued accordance with the Stated Amount of percentage which would cause its Commitment represents to the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; Total Commitment.
(iviii) each Each Letter of Credit may, at the option of the applicable Issuing Lender, provide that such Issuing Lender may (but shall have not be required to) pay all or any part of the maximum amount which may at any time be available for drawing thereunder to the beneficiary thereof upon the occurrence of an expiration date occurring no later than one year after the date Event of issuance thereof, unless otherwise agreed upon by the Administrative Agent Default and the Letter acceleration of Credit Issuerthe maturity of the Loans, provided that that, if payment is not then due to the beneficiary, such Issuing Lender shall deposit the funds in no event shall question in an account with such expiration date occur later than Issuing Lender to secure payment to the L/C Maturity Date; (v) each Letter of Credit beneficiary and any funds so deposited shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for paid to the beneficiary of the Letter of Credit if conditions to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party such payment are satisfied or returned to the Administrative Agent or for distribution to the Required Revolving Credit Lenders stating that a Default or Event of Default (or, if all Obligations shall have been paid in full in cash, to the Borrower) if no payment to the beneficiary has occurred been made and is continuing until such time as the final date available for drawings under the Letter of Credit Issuer has passed. Each payment or deposit of funds by an Issuing Lender as provided in this paragraph shall have received be treated for all purposes of this Agreement as a written notice drawing duly honored by such Issuing Lender under the related Letter of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1Credit.
(cb) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) Whenever the Borrower desires the issuance of a Letter of Credit, it shall deliver to the Administrative Agent and the applicable Issuing Lender a written notice no later than 1:00 p.m. (New York time) at least five Business Days prior to the proposed date of issuance provided, however, that the Borrower and the Administrative Agent and such Issuing Lender may agree to a shorter time period. That notice shall specify (i) the Issuing Lender for such Letter of Credit, (ii) the proposed date of issuance (which shall be a Business Day under the laws of the jurisdiction of the applicable Issuing Lender), (iii) the face amount of the Letter of Credit, (iv) the expiration date of the Letter of Credit Issuer and (which v) the name and address of the beneficiary. Such notice shall be accompanied by a brief description of the underlying transaction and upon the request of the applicable Issuing Lender, the Borrower shall provide additional details regarding the underlying transaction. Concurrently with the giving of written notice of a request for the issuance of a Letter of Credit, the Borrower shall specify a precise description of the documents and the verbatim text of any certificate to be presented by the beneficiary of such Letter of Credit which, if presented by such beneficiary prior to the expiration date of the Letter of Credit, would require the applicable Issuing Lender to make payment under the Letter of Credit; provided that the applicable Issuing Lender, in its reasonable discretion, may require customary changes in any such documents and certificates. Upon issuance of any Letter of Credit, the applicable Issuing Lender shall notify the Administrative Agent of the issuance of such Letter of Credit. Promptly after receipt of such notice, the Administrative Agent shall promptly notify each Lender of the applicable Lenders), issuance and the Borrower shall have the right, on amount of each such Lender's respective participation therein.
(c) The payment of drafts under any day, permanently to terminate or reduce the Letter of Credit Commitment shall be made in whole or in part, provided that, after giving effect to accordance with the terms of such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitmentand, in that connection, any Issuing Lender shall be entitled to honor any drafts and accept any documents presented to it by the beneficiary of such Letter of Credit in accordance with the terms of such Letter of Credit and believed by such Issuing Lender in good faith to be genuine. No Issuing Lender shall have any duty to inquire as to the accuracy or authenticity of any draft or other drawing documents which may be presented to it, but shall be responsible only to determine in accordance with customary commercial practices that the documents which are required to be presented before payment or acceptance of a draft under any Letter of Credit have been delivered and that they comply on their face with the requirements of that Letter of Credit.
(d) [Reserved]If any Issuing Lender shall make payment on any draft presented under a Letter of Credit, such Issuing Lender shall give notice of such payment to the Administrative Agent and the Lenders and each Lender hereby authorizes and requests such Issuing Lender to advance for its account pursuant to the terms hereof its share of such payment based upon its participation in the Letter of Credit and agrees promptly to reimburse such Issuing Lender in immediately available funds for the Dollar equivalent of the amount so advanced on its behalf. If such reimbursement is not made by any Lender in immediately available funds on the same day on which such Issuing Lender shall have made payment on any such draft, such Lender shall pay interest thereon to such Issuing Lender at a rate per annum equal to the Issuing Lender's cost of obtaining overnight funds in the New York Federal Funds Market.
(e) The In the case of any draft presented under a Letter of Credit Issuer which is required to be paid at any time on or before the Maturity Date and provided that the conditions specified in Section 4.2 are then satisfied, such payment shall not be constitute an ABR Loan hereunder, and interest shall accrue from the date the applicable Issuing Lender makes payment of a draft under the Letter of Credit. If any obligation to issue any draft is presented under a Letter of Credit if:and (i) the conditions specified in Section 4.2 are not satisfied or (ii) if the Commitments have been terminated, then the Borrower will, upon demand by the Administrative Agent, pay to the applicable Issuing Lender, in immediately available funds, the full amount of such draft.
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport The Borrower agrees to enjoin or restrain pay the Letter following amount to each Issuing Lender with respect to Letters of Credit Issuer from issuing such issued by it hereunder:
(A) with respect to drawings made under any Letter of Credit, or any law applicable interest, payable on demand, on the amount paid by such Issuing Lender in respect of each such drawing from the date of the drawing to, but excluding, the date such amount is reimbursed by the Borrower at a rate which is at all times equal to 2% per annum in excess of the Alternate Base Rate; provided that no such default interest shall be payable if such reimbursement is made from the proceeds of Revolving Credit Loans pursuant to Section 2.24(e);
(B) with respect to the issuance, amendment or transfer of each Letter of Credit Issuer and each drawing made thereunder, documentation and processing charges in accordance with such Issuing Lender's standard schedule for such charges in effect at the time of such issuance, amendment, transfer or drawing, as the case may be; and
(C) a fronting fee computed at the rate agreed to by the Borrower and the applicable Issuing Lender, on the daily average face amount of each outstanding Letter of Credit issued by such Issuing Lender, such fee to be due and payable in arrears on and through the last day of each fiscal quarter of the Borrower, on the Maturity Date and on the expiration of the last outstanding Letter of Credit.
(ii) The Borrower agrees to pay to the Administrative Letters of Credit outstanding, such Lender's pro rata share of a commission on the maximum amount available from time to time to be drawn under such outstanding Letters of Credit calculated at a rate per annum equal to the applicable LIBOR Spread from time to time in effect hereunder. Such commission shall be payable in arrears on and through the last day of each fiscal quarter of the Borrower and on the later of the Maturity Date and the expiration of the last outstanding Letter of Credit.
(iii) Promptly upon receipt by any Issuing Lender or the Administrative Agent (as applicable) of any amount described in clause (i)(A) or (ii) of this Section 2.24(f), or any amount described in Section 2.24(e) previously reimbursed to the applicable Issuing Lender by the Lenders, such Issuing Lender or the Administrative Agent (as applicable) shall distribute to each Lender its pro rata share of such amount. Amounts payable under clauses (i)(B) and (i)(C) of this Section 2.24(f) shall be paid directly to the Issuing Lender and shall be for its exclusive use.
(g) If by reason of (i) any change after the date hereof in Applicable Law, or in the interpretation or administration thereof (including, without limitation, any request, guideline or policy not having the force of law) by any Governmental Authority charged with the administration or interpretation thereof, or (ii) compliance by any Issuing Lender or any Lender with any direction, request or directive requirement (whether or not having the force of law) from issued after the date hereof by any Governmental Authority or monetary authority (including any change whether or not proposed or published prior to the date hereof), including, without limitation, Regulation D of the Board:
(A) any Issuing Lender or any Lender shall be subject to any tax, levy, charge or withholding of any nature (other than withholding tax imposed by the United States of America or any political subdivision or taxing authority thereof or therein or any other tax, levy, charge or withholding (i) that is measured with respect to the overall net income of such Issuing Lender or such Lender (or is imposed in lieu of a tax on net income) or of a Lending office of such Issuing Lender or such Lender, and that is imposed by the United States of America, or by the jurisdiction over in which such Issuing Lender or such Lender is incorporated, or in which such Lending Office is located, managed or controlled or in which such Issuing Lender or such Lender has its principal office (or any political subdivision or taxing authority thereof or therein) or (ii) that is imposed solely by reason of such Issuing Lender or such Lender failing to make a declaration of, or otherwise to establish, non-residence, or to make any other claim for exemption, or otherwise to comply with any certification, identification, information, documentation or reporting requirements prescribed under the laws of the relevant jurisdiction, in those cases where such Issuing Lender or such Lender may properly make the declaration or claim or so establish non-residence or otherwise comply) or to any variation thereof or to any penalty with respect to the maintenance or fulfillment of its obligations under this Section 2.24, whether directly or by such being imposed on or suffered by any Issuing Lender or any Lender;
(B) any reserve, deposit or similar requirement is or shall be applicable, imposed or modified in respect of any Letter of Credit Issuer shall prohibit, issued by any Issuing Lender or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit participations therein purchased by any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunderLender; or
(viiC) a default of there shall be imposed on any Revolving Credit Lender’s obligations to fund under Section 3.3 exists Issuing Lender or any Revolving Credit Lender is at such time a Defaulting Lender hereunderany other condition regarding this Section 2.24, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if or any participation therein; and the Letter result of Credit Issuer would not be permitted at such time the foregoing is directly or indirectly to issue such Letter increase the cost to any Issuing Lender or any Lender of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend issuing, making or maintaining any Letter of Credit if (A) the Letter or of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereofpurchasing or maintaining any participation therein, or (B) to reduce the beneficiary of amount receivable in respect thereof by any Issuing Lender or any Lender, then and in any such Letter of Credit does not accept case the proposed amendment to Issuing Lender or such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of Lender may, at any time, notify the Revolving Credit Lenders with respect to any Letters of Credit issued by it Borrower, and the documents associated therewith and the Letter of Credit Issuer Borrower shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken pay on demand such amounts as such Issuing Lender or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed such Lender may specify to be issued necessary to compensate such Issuing Lender or such Lender for such additional cost or reduced receipt. The determination by it and Issuer Documents pertaining any Issuing Lender or any Lender, as the case may be, of any amount due pursuant to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.this
Appears in 1 contract
Samples: Credit Agreement (Cendant Corp)
Letters of Credit. (a) Subject to and upon Upon the terms and subject to the conditions herein set forth, at any time and from time to time after the Original Closing Date date hereof and prior to the L/C Maturity Termination Date, the Letter Lead Borrower on behalf of Credit Issuer agreesthe Borrowers may request an Issuing Bank to issue, and subject to the terms and conditions contained herein and in reliance upon on the agreements agreement of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit ofSECTION 2.13, the Borrower and the Restricted Subsidiariesapplicable Issuing Bank shall issue, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of the Lead Borrower or a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the one or more Letters of Credit Outstanding at such timeCredit; provided, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) belowhowever, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for after giving effect to such issuance (i) the beneficiary aggregate Letter of Credit Outstandings shall exceed the Letter of Credit to have a Letter of Sublimit, or (ii) the Tranche A Credit issued Extensions and/or the aggregate Revolving Credit Extensions (including Swingline Loans) would exceed the limitations set forth in its favorSECTION 2.01(a); and (vii) provided, further, that no Letter of Credit shall be issued by a Letter of Credit Issuer after it has unless an Issuing Bank shall have received a written notice from any Credit Party or the Administrative Agent or that the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until conditions to such time as the Letter of Credit Issuer shall issuance have received a written notice of been met (x) rescission of such notice from shall be deemed given if the party or parties originally delivering such Issuing Bank has not received notice or (y) that the waiver conditions have not been met within two Business Days of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) initial request to the Issuing Bank and the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenderspursuant to SECTION 2.13(h), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue further that any Letter of Credit issued for the benefit of any Restricted Subsidiary that is not a Borrower shall be issued naming the Lead Borrower as the account party on any such Letter of Credit but such Letter of Credit may contain a statement that it is being issued for the benefit of such Restricted Subsidiary; provided further that an Issuing Bank shall not be required to issue any such Letter of Credit in its reasonable discretion if:
: (iA) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer Issuing Bank from issuing such Letter of Credit, or any law applicable Applicable Law relating to the Letter of Credit Issuer Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer Issuing Bank shall prohibit, or request that the Letter of Credit Issuer Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer Issuing Bank is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer Issuing Bank in good xxxxx xxxxx material to it;
, (iiB) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer Issuing Bank applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(ivC) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Deteriorating Lender hereunder, unless, unless the Issuing Bank has entered into reasonably satisfactory arrangements with the Borrowers or such Lender to eliminate the Issuing Bank’s risk of full reimbursement with respect to such Letter of Credit and all other Letters of Credit as to which the Issuing Banks has actual or potential fronting exposure with respect to such Deteriorating Lender (as determined by each Issuing Bank in each case, its sole discretion). A permanent reduction of the Tranche A Commitments shall not require a corresponding pro rata reduction in the Letter of Credit Issuer has entered into satisfactory arrangements with Sublimit; provided, however, that if the Borrower or such Revolving Credit Lender Tranche A Commitments are reduced to eliminate an amount less than the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if Sublimit, then the Letter of Credit Issuer would Sublimit shall be reduced to an amount equal to (or, at Lead Borrower’s option, less than) the Tranche A Commitments. Any Issuing Bank (other than Bank of America or any of its Affiliates) shall notify the Administrative Agent in writing on each Business Day of all Letters of Credit issued on the prior Business Day by such Issuing Bank. If the conditions for borrowing under SECTION 4.02 cannot in fact be permitted at fulfilled, the Required Revolving Lenders may direct the Issuing Banks to, and the Issuing Banks thereupon shall, cease issue Letters of Credit (other than Permitted Overadvances) until such time to issue such conditions can be satisfied or are waived in accordance with SECTION 9.01.
(b) Each Standby Letter of Credit in its amended form under shall expire at or prior to the terms hereof.
close of business on the earlier of the date which is (gi) The Letter one (1) year after the date of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary issuance of such Letter of Credit does not accept (or such other longer period of time as the proposed amendment Administrative Agent and the applicable Issuing Bank may agree) (or, in the case of any renewal or extension thereof, one (1) year after such renewal or extension) and (ii) unless cash collateralized or otherwise credit supported to the reasonable satisfaction of the Administrative Agent and the applicable Issuing Bank (in which case, the expiry may extend no longer than twelve (12) months after the then Latest Maturity Date), five (5) Business Days prior to the then Latest Maturity Date; provided, however, that each Standby Letter of Credit may, upon the request of the Lead Borrower, include a provision whereby such Letter of CreditCredit shall be renewed automatically (unless the applicable Issuing Bank notifies the beneficiary thereof at least thirty (30) days prior to the then-applicable expiration date that such Letter of Credit will not be renewed) for additional consecutive periods of twelve (12) months or less (but not beyond the date that is five (5) Business Days prior to the then Latest Maturity Date, unless cash collateralized or otherwise credit supported to the reasonable satisfaction of the Administrative Agent and the applicable Issuing Bank (in which case, the expiry may extend no longer than twelve (12) months after the then Latest Maturity Date)).
(hc) The Each Commercial Letter of Credit Issuer shall act expire at or prior to the close of business on behalf the earlier of the Revolving date which is (i) one (1) year after the date of the issuance of such Commercial Letter of Credit (or such other period as may be acceptable to the Administrative Agent and the applicable Issuing Bank) and (ii) unless cash collateralized or otherwise credit supported to the reasonable satisfaction of the Administrative Agent and the applicable Issuing Bank (in which case, the expiry may extend no longer than twelve (12) months after the then Latest Maturity Date), five (5) Business Days prior to the then Latest Maturity Date.
(d) Drafts drawn under each Letter of Credit shall be reimbursed by the Borrowers by paying to the Administrative Agent an amount equal to such drawing not later than 1:00 p.m. on the second Business Day immediately following the day that the Lead Borrower receives notice of such drawing and demand for payment by the applicable Issuing Bank, provided that (i) in the absence of written notice to the contrary from the Lead Borrower, and subject to the other provisions of this Agreement, such payments shall be financed when due with a Prime Rate Loan or Swingline Loan to the applicable Borrower in an equivalent amount and, to the extent so financed, the respective Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Prime Rate Loan or Swingline Loan, and (ii) in the event that the Lead Borrower has notified the Administrative Agent that it will not so finance any such payments, the applicable Borrowers will make payment directly to the applicable Issuing Bank when due. The Administrative Agent shall promptly remit the proceeds from any Loans made pursuant to clause (i) above in reimbursement of a draw under a Letter of Credit to the applicable Issuing Bank. Such Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the Lead Borrower by telephone (confirmed by telecopy) of such demand for payment and whether such Issuing Bank has made or will make payment thereunder; provided, however, that any failure to give or delay in giving such notice shall not relieve the Borrowers of their obligation to reimburse such Issuing Bank and the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the such payment.
(e) If any Issuing Bank shall make any Letter of Credit Issuer Disbursement, then, unless the applicable Borrowers shall have all of reimburse such Issuing Bank in full on the benefits and immunities (Adate provided in SECTION 2.13(d) provided above, the unpaid amount thereof shall bear interest at the rate per annum then applicable to Prime Rate Loans determined by reference to the Administrative Agent in Section 13 with respect Prime Rate for each day from and including the date such payment is made to, but excluding, the date that such Borrowers reimburse such Issuing Bank therefor, provided, however, that, if such Borrowers fail to reimburse any acts taken or omissions suffered Issuing Bank when due pursuant to SECTION 2.13(d), then interest shall accrue at the Revolving Default Rate. Interest accrued pursuant to this paragraph shall be for the account of, and promptly remitted by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included , upon receipt to, the Letter applicable Issuing Bank, except that interest accrued on and after the date of Credit Issuer with respect payment by any Lender pursuant to SECTION 2.13(g) to reimburse such acts or omissions, and (B) as additionally provided herein with respect Issuing Bank shall be for the account of such Lender to the Letter extent of Credit Issuersuch payment.
Appears in 1 contract
Samples: Credit Agreement (Gymboree Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Borrower may request that the Letter of Credit Issuer agrees, in reliance upon issue for the agreements account of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a standby letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the such time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (viv) each no Letter of Credit shall be issued if it is requested to be denominated in Dollars or an Alternative Currencyany currency other than U.S. Dollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders any Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon Upon the terms and subject to the conditions herein set forth, the Borrower may request a Fronting Bank, at any time and from time to time after the Original Closing Date date hereof and prior to the L/C Maturity Termination Date, to issue, and, subject to the Letter of Credit Issuer agreesterms and conditions contained herein, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3such Fronting Bank shall issue, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoingBorrower, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the one or more Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit IssuerCredit, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for after giving effect to such issuance (i) the beneficiary of the aggregate Letter of Credit to have a Outstandings shall exceed $15,000,000, (ii) the aggregate Letter of Credit issued Outstandings, when added to the aggregate outstanding principal amount of the Loans, would exceed the lesser of the Borrowing Base or the Total Commitment or (iii) the aggregate Letter of Credit Outstandings in its favor; respect of the obligations or operations of Non-Debtor Guarantors, when added to the amount of advances and investments made by the Borrower to or in the Non-Debtor Guarantors after the Filing Date (viiother than advances or investments of the type set forth in clause (iv) of Section 6.10 hereof), would exceed $5,000,000, provided further that no Letter of Credit shall be issued by a Letter of Credit Issuer after it has if the Fronting Bank shall have received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred the conditions to such issuance have not been met and is continuing until such time as the provided further that no Letter of Credit Issuer shall be issued for use in support of an obligation of a Non-Debtor Guarantor unless such Non-Debtor Guarantor shall have received executed and delivered a written notice of (x) rescission of such notice from Foreign Guaranty and Security Agreement and a Reimbursement Agreement in form and substance satisfactory to the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1Agent.
(cb) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the No Letter of Credit Issuer (which shall expire later than the Administrative Agent Maturity Date, provided that if any Letter of Credit shall promptly notify be outstanding on the applicable Lenders)Termination Date, the Borrower shall have shall, at or prior to the rightTermination Date, on any dayexcept as the Agent may otherwise agree in writing, permanently to terminate or reduce the Letter (i) cause all Letters of Credit Commitment which expire after the Termination Date to be returned to the Fronting Bank undrawn and marked "canceled" or (ii) if the Borrower is unable to do so in whole or in part, provided that, after giving effect either (x) provide a "back-to-back" letter of credit to one or more Fronting Banks in a form satisfactory to such termination or reductionFronting Bank and the Agent (in their sole discretion), issued by a bank satisfactory to such Fronting Bank and the Agent (in their sole discretion), in an amount equal to 105% of the then aggregate undrawn stated amount of all outstanding Letters of Credit Outstanding shall not exceed issued by such Fronting Banks or (y) deposit cash in the Letter of Credit CommitmentAccount in an amount equal to 105% of the then aggregate undrawn stated amount of all outstanding Letters of Credit as collateral security for the Borrower's reimbursement obligations in connection therewith, such cash to be remitted to the Borrower upon the expiration, cancellation or other termination or satisfaction of such reimbursement obligations.
(c) The Borrower shall pay to each Fronting Bank, the fees and charges as are specifically provided for in Section 2.21 hereof.
(d) [Reserved]Drafts drawn under each Letter of Credit shall be reimbursed by the Borrower in Dollars not later than the first Business Day following the date of draw and shall bear interest from the date of draw until the first Business Day following the date of draw at a rate per annum equal to the Alternate Base Rate plus 2.25% and thereafter until reimbursed in full at a rate per annum equal to the Alternate Base Rate plus 2.25% (computed on the basis of the actual number of days elapsed over a year of 360 days); it being understood that no interest shall be payable with respect to drawings that are reimbursed by the close of business on the date of draw. The Borrower shall effect such reimbursement (x) if such draw occurs prior to the Termination Date (or the earlier date of termination of the Total Commitment), in cash or through a Borrowing without the satisfaction of the conditions precedent set forth in Section 4.02 or (y) if such draw occurs on or after the Termination Date (or the earlier date of termination of the Total Commitment), in cash. Each Lender agrees to make the Loans described in clause (x) of the preceding sentence notwithstanding a failure to satisfy the applicable lending conditions thereto or the provisions of Sections 2.02 or 2.28.
(e) The Letter Immediately upon the issuance of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) by any orderFronting Bank, judgment such Fronting Bank shall be deemed to have sold to each Lender other than such Fronting Bank and each such other Lender shall be deemed unconditionally and irrevocably to have purchased from such Fronting Bank, without recourse or decree warranty, an undivided interest and participation, to the extent of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Lender's Commitment Percentage, in such Letter of Credit, or each drawing thereunder and the obligations of the Borrower and the Guarantors under this Agreement with respect thereto. Upon any law applicable change in the Commitments pursuant to the Section 10.03, it is hereby agreed that with respect to all Letter of Credit Issuer or any request or directive (whether or not having Outstandings, there shall be an automatic adjustment to the force of law) from any Governmental Authority with jurisdiction over participations hereby created to reflect the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies new Commitment Percentages of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed assigning and assignee Lenders. Any action taken or omitted by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is a Fronting Bank under or in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of connection with a commercial Letter of Credit, if taken or $10,000 or the Dollar Equivalent thereof, omitted in the case absence of a standby Letter of Credit;
(iv) gross negligence or willful misconduct, shall not create for such Letter of Credit is denominated in a currency Fronting Bank any resulting liability to any other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend In the event that a Fronting Bank makes any payment under any Letter of Credit if and the Letter Borrower shall not have reimbursed such amount in full to such Fronting Bank pursuant to this Section 2.03, the Fronting Bank shall promptly notify the Agent, which shall promptly notify each Lender of Credit Issuer would such failure, and each Lender shall promptly and unconditionally pay to the Agent for the account of the Fronting Bank the amount of such Lender's Commitment Percentage of such unreimbursed payment in Dollars and in same day funds. If the Fronting Bank so notifies the Agent, and the Agent so notifies the Lenders prior to 11:00 a.m. (New York City time) on any Business Day, such Lenders shall make available to the Fronting Bank such Lender's Commitment Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Lender shall not be permitted have so made its Commitment Percentage of the amount of such payment available to the Fronting Bank, such Lender agrees to pay to such Fronting Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Agent for the account of such Fronting Bank at such time the Federal Funds Effective Rate. The failure of any Lender to issue such Letter make available to the Fronting Bank its Commitment Percentage of Credit in its amended form any payment under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) shall not relieve any other Lender of its obligation hereunder to make available to the Fronting Bank its Commitment Percentage of any payment under any Letter of Credit Issuer would have on the date required, as specified above, but no obligation at such time Lender shall be responsible for the failure of any other Lender to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment make available to such Letter Fronting Bank such other Lender's Commitment Percentage of Credit.
(h) The Letter any such payment. Whenever a Fronting Bank receives a payment of Credit Issuer a reimbursement obligation as to which it has received any payments from the Lenders pursuant to this paragraph, such Fronting Bank shall act on behalf of the Revolving Credit Lenders with respect pay to any Letters of Credit issued by it each Lender which has paid its Commitment Percentage thereof, in Dollars and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining same day funds, an amount equal to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerLender's Commitment Percentage thereof.
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Samples: Revolving Credit and Guaranty Agreement (Thermadyne Holdings Corp /De)
Letters of Credit. (a) Subject to and upon all the terms and conditions herein set forthhereof, 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 any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, Borrower's request Xxxxxx may in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to its discretion issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (an "L/C" and collectively the “Letters "L/Cs") for the account of the Borrower subject to availability under the Revolving Credit” , and each, a “Letter 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 letter of Credit”credit (the "L/C Agreement") in such the form as may of Exhibit B hereto. The L/Cs shall consist of standby and commercial letters of credit in an aggregate face amount not to exceed $30,000,000. Each L/C shall have an expiry date not more than one year from the date of issuance thereof (but in no event later than the Termination Date). The amount available to be approved by drawn under each L/C issued pursuant hereto shall be deducted from the Letter credit otherwise available under the Revolving Credit. In consideration of Credit Issuer in its reasonable discretion; provided that the issuance of L/Cs the Borrower shall be agrees to pay Xxxxxx for the benefit of the Banks a cofee (the "L/C Participation Fee") in the amount per annum equal to the Applicable Margin for Eurodollar Loans (computed on the basis of a 360-applicant, day year and jointly and severally liable with respect to, actual days elapsed) of the face amount for each Letter of Credit L/C issued for the account of the Borrower hereunder. In addition, the Borrower shall pay Xxxxxx (x) a Restricted Subsidiaryfee (the "L/C Issuance Fee") in the amount per annum equal to (i) for standby L/Cs, eight- hundredths of one percent (0.08%) of the stated amount of each standby L/C issued hereunder and (ii) for commercial L/Cs, the customary issuance fee for commercial L/Cs as may be established by Xxxxxx from time to time, and (y) such drawing, negotiation, amendment and other administrative fees in connection with each L/C as may be established by Xxxxxx from time to time (the "L/C Administrative Fee"). All L/C Issuance Fees and L/C Participation Fees shall be payable quarterly in arrears on the last day of each March, June, September and December commencing December 31, 1997 and on the Termination Date, and all L/C Administrative Fees shall be payable on the date of issuance of each L/C hereunder and on the date required by Xxxxxx. Upon satisfaction of all conditions precedent to the initial Loan hereunder, without any further action on the part of the Borrower, Xxxxxx, the Administration Agent or any Bank, (i) each of the letters of credit listed on Exhibit L hereto (the "Existing L/Cs") previously issued by Xxxxxx for the account of the Borrower or Triad Nitrogen, Inc. under the Existing Agreements shall be deemed for all purposes of this Agreement to be an L/C issued hereunder, (ii) each application and agreement for a letter of credit 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 Borrower's or Triad Nitrogen, Inc.'s indebtedness, obligations and liabilities to Xxxxxx with respect to the Existing L/Cs shall be deemed to be Reimbursement Obligations of the Borrower for all purposes of this Agreement.
(b) Notwithstanding anything contained in any L/C Agreement to the foregoing, contrary: (i) no Letter of Credit the Borrower shall be issued the Stated Amount of whichpay fees in connection with each L/C as set forth in Section 1.5(a) hereof, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (fexcept as otherwise provided in Section 3.4(c) belowhereof, no Letter before the occurrence of Credit shall be a Potential Default or an Event of Default, Xxxxxx will not call for the funding by the Borrower of any amount under an L/C issued for the Stated Amount Borrower's account, or for any other form of which would cause collateral security for the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then Borrower's obligations in effect; connection with such L/C, before being presented with a drawing thereunder, and (iii) no Letter if Xxxxxx is not timely reimbursed for the amount of Credit any drawing under an L/C on the date such drawing is paid, the Borrower's obligation to reimburse Xxxxxx for the amount of such drawing shall bear interest as specified in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have Section 1.6 hereof. If Xxxxxx issues any L/C with an expiration date occurring no later that is automatically extended unless Xxxxxx gives written notice that the expiration date will not so extend beyond its then scheduled expiration date, Xxxxxx will give such written notice of non-renewal before the time necessary to prevent such automatic extension if before such required notice date (i) the expiration date of such L/C if so extended would be more than one year from the then scheduled expiration date of such L/C or after the Termination Date, (ii) the Revolving Credit Commitments have been terminated, or (iii) an Event of Default exists and the Required Banks have given Xxxxxx instructions not to so permit the extension of the expiration date of issuance thereof, unless otherwise agreed upon by the such L/C.
(c) The Administrative Agent and shall give prompt telephone, telex, or telecopy notice to each Bank of each issuance of, or amendment to, an L/C specifying the Letter effective date of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) or amendment, the amount, the beneficiary, and the expiration date of the L/C, in each Letter of Credit shall be denominated in Dollars case as established originally or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law through the relevant amendment, as applicable, the account party or parties for the beneficiary of the Letter of Credit to have a Letter of Credit issued L/C, each Bank's pro rata participation in its favor; such L/C and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or whether the Administrative Agent or has classified the Required Revolving Credit Lenders stating that L/C as a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders)commercial, the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Creditperformance, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters financial letter of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lenderregulatory reporting purposes.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein hereof, and in reliance on the agreements set forthforth in clauses (c) and (e) hereof, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Datetime, on any Business Day, the Letter Issuer agrees to issue Letters of Credit Issuer agrees, in reliance upon for the agreements account of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved from time to time by the Letter Issuer; PROVIDED that (i) the sum of the aggregate face amount of all Letters of Credit Issuer in its reasonable discretion; provided that outstanding and the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter aggregate amount drawn under all Letters of Credit issued for which the account Issuer has not been reimbursed at any time shall not exceed $2,000,000 and (ii) the sum of a Restricted Subsidiarythe Revolving Credit Loans, the aggregate face amount of all Letters of Credit outstanding and the aggregate amount drawn under all Letters of Credit for which the Issuer has not been reimbursed shall not, at any time, exceed the Revolving Credit Commitment (as reduced from time to time pursuant to SECTION 2.5 and SECTION 2.9).
(b) Notwithstanding the foregoing, Each Letter of Credit (i) no Letter of Credit shall be issued opened pursuant to a written request from the Stated Amount Borrower on the Issuer's then current form of which, when added application for letter of credit which application shall be completed to the Letters satisfaction of Credit Outstanding at the Issuer and shall be delivered to the Issuer together with such timeother certificates, would exceed documents and other instruments and information as the Letter of Credit Commitment then in effect; Issuer may reasonably request, (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; Dollars, (viiii) no Letter of Credit shall be issued if it would be illegal under any applicable law for governed by the beneficiary Uniform Customs and, to the extent not inconsistent therewith, the laws of the Letter State of Credit to have a Letter of Credit issued in its favor; New York and (viiiv) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or expire on the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) Expiry Date. The Letter of Credit Issuer shall not at any time be under any obligation obligated to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing if such Letter of Creditissuance would conflict with, or any law applicable to cause the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting to exceed any limits imposed by, an applicable Requirement of Laws.
(c) The Issuer agrees to allot and does allot, to itself and each Revolving Credit Lender hereunderand, unless, in each case, to induce the Issuer to issue the Letter of Credit, each Revolving Credit Lender severally and irrevocably agrees to take and does hereby take for its own account and risk an undivided participating interest in a percentage equal to such Revolving Credit Lender's Revolving Credit Commitment Percentage of the Issuer's Obligations.
(d) The Borrower agrees (i) to reimburse the Issuer has entered into satisfactory arrangements with forthwith upon its demand for any payment made by the Issuer under a Letter of Credit and (ii) to pay interest on any unreimbursed portion of any such payment from the date of such payment until reimbursement in full thereof at a rate per annum equal to (A) prior to the date which is one Business Day after the day on which reimbursement from the Borrower for such payment is due, the rate which would then be payable on any outstanding Alternate Base Rate Loans which are not overdue and (B) thereafter, the rate which would then be payable on any outstanding Alternate Base Rate Loans which are overdue. In addition to the foregoing, the Borrower shall reimburse the Issuer for any taxes, fees, charges or other costs or expenses incurred by the Issuer in connection with such payment. All payments hereunder shall be made to the Issuer at its address for notices specified herein in Dollars in immediately available funds.
(i) In the event that the Issuer makes a payment under a Letter of Credit and is not reimbursed in full therefor forthwith, upon demand of the Issuer referred to in SECTION 2.21(d), the Issuer shall promptly make demand for such any amount for which it has not received reimbursement upon each Revolving Credit Lender. Each Revolving Credit Lender unconditionally and irrevocably agrees that forthwith upon its receipt of any such demand for reimbursement, such Revolving Credit Lender shall transfer to eliminate the Issuer, in immediately available funds, an amount equal to such Revolving Credit Lender's PRO RATA share of the unreimbursed portion of such payment; PROVIDED that, if such demand is made prior to 12:00 noon, New York City time, on a Business Day, such Revolving Credit Lender shall make such payment to the Issuer prior to the end of such Business Day and otherwise such Revolving Credit Lender shall make such payment on the next succeeding Business Day. Whenever, at any time after the Issuer has made a payment under a Letter of Credit Issuer’s risk with respect and has received from any Revolving Credit Lender such Revolving Credit Lender's PRO RATA share of the unreimbursed portion of such payment, the Issuer receives any reimbursement on account of such unreimbursed portion or any payment of interest on account thereof, the Issuer shall distribute to such Revolving Credit Lender its PRO RATA share thereof; PROVIDED that in the event that the receipt by the Issuer of such reimbursement or such payment of interest (as the case may be) is required to be returned, such Revolving Credit Lender will return to the Issuer any portion thereof previously distributed by the Issuer to such Revolving Credit Lender.
(fii) The Letter Upon the occurrence and during the continuation of any Event of Default under SECTION 7.1(e) or SECTION 7.1(f) or, with notice from the Administrative Agent, upon the occurrence of any other Event of Default that is continuing (x) an amount equal to the outstanding Letters of Credit shall, without demand upon or notice to the Borrower, be deemed to have been paid or disbursed by the Issuer upon such Letters of Credit (notwithstanding that such amount may not in fact have been paid or disbursed); and (y) without further notice in the case of an Event of Default under SECTION 7.1(e) or SECTION 7.1(f) or, in the case of any other Event of Default that has occurred and is continuing, upon notice by the Administrative Agent to the Borrower of its Obligations hereunder, the Borrower shall not amend be immediately obligated to reimburse the Issuer for the amount deemed to have been paid or disbursed by the Issuer. Any amount so payable by the Borrower shall be deposited by the Borrower in cash into an account located in the United States designated by and under the sole dominion and control of the Administrative Agent which cash and the proceeds thereof shall be held as collateral security for the Obligations in connection with any Letter of Credit issued by the Issuer. The Borrower hereby grants to the Administrative Agent, for the benefit of the Issuer and the Revolving Credit Lenders, a security interest in such cash collateral to secure all Obligations of the Borrower under this Agreement and the other Loan Documents. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payments of drafts drawn under any Letter of Credit, and the unused portion thereof after all Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other Obligations. After all Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been fully satisfied and all other Obligations shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Borrower. The Borrower shall execute and deliver to the Administrative Agent, for the account of the Issuer, such further documents and instruments as the Administrative Agent may request to evidence the creation and perfection of the security interest in such cash collateral account.
(f) The Borrower shall pay to the Administrative Agent for the pro rata account of the Issuer and the Revolving Credit Lenders in respect of each Letter of Credit a fee in an amount equal to the Applicable Margin then in effect for Revolving Credit Loans that bear interest at the Eurodollar Rate (calculated on the basis of the actual number of days elapsed over a 360-day year) multiplied by the Stated Amount of the Letter of Credit Issuer would not Credit, such fee to be permitted at such time payable for the period from the date of issuance to issue the Expiry Date of such Letter of Credit Credit, quarterly in its amended form under the terms hereofarrears on each Interest Payment Date for each quarter prior to such Expiry Date.
(g) The Letter of Credit Issuer shall be under no obligation Borrower agrees to amend any Letter of Credit if (A) pay to the Letter of Credit Issuer would have no obligation at such time to issue such Issuer, for its own account, for services rendered by the Issuer, an issuance fee for each Letter of Credit in its amended form under the terms hereof, or (B) amount equal to .25% of the beneficiary Stated Amount of such Letter of Credit does not accept from the proposed amendment to date of issuance of such Letter of Credit, payable quarterly, in arrears. The Borrower shall also pay or reimburse the Issuer for such normal and customary costs and expenses as are incurred or charged by the Issuer on issuing, effecting payment under, amending or otherwise administering any Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf Reimbursement Obligations of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein Borrower with respect to the Letter of Credit related thereto shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation, the following: (i) the existence of any claim, set-off, defense or other right which the Borrower may have at any time against any beneficiary, or any transferee, of such Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), the Administrative Agent, the Issuer, any Lender or any other Person, whether in connection with this Agreement or the transactions contemplated herein, or any unrelated transaction; (ii) any statement or any other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iii) payment by the Issuer under such Letter of Credit against presentation of a draft or certificate which does not comply with the terms of such Letter of Credit or any other circumstances or happening whatsoever, whether or not similar to any of the foregoing (PROVIDED, that such payment by the Issuer or such circumstance or happening does not constitute gross negligence or willful misconduct of the Issuer).
(i) To the extent that any provision of any application for the opening of a Letter of Credit is inconsistent with the provisions of this SECTION 2.21, the provisions in this Section shall apply.
Appears in 1 contract
Letters of Credit. 3.1. The L/C Commitment
(a) Subject to and upon the terms and conditions herein set forthhereof, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Dateincluding, without limitation, the Letter satisfaction of Credit Issuer agreesthe conditions precedent set forth in Section 6 hereof, the Issuing Lender, in reliance upon on the agreements of the Revolving Credit other Lenders set forth in this Section 3subsection 3.4(a), agrees to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) for the account of any Borrower or any Subsidiary or Affiliate of a Borrower in which EPPHC has a direct or indirect investment, on any Business Day during the Commitment Period in such form as may be approved from time to time by the Letter of Credit Issuer in its reasonable discretionIssuing Lender; provided that the Borrower Issuing Lender shall be a co-applicant, and jointly and severally liable with respect to, each not issue any Letter of Credit if, after giving effect to such issuance and after giving effect to any Loans requested to be made or Letters of Credit requested to be issued for on such date the account sum of a Restricted Subsidiary.
the Loans and Letter of Credit Outstandings would exceed the lesser of (bx) Notwithstanding the foregoing, Commitments and (iy) no the Borrowing Base then in effect. Each Letter of Credit shall (i) be issued to support obligations of any Borrower or any Subsidiary or Affiliate of a Borrower in which EPPHC has a direct or indirect investment, contingent or otherwise, which finance the Stated Amount working capital and business needs of whichsuch Borrower or Subsidiary or Affiliate in which EPPHC has a direct or indirect investment, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; and (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring expire no later than the earlier of (x) one year (or such later date agreed to by the Issuing Lender) after the date of issuance thereofand (y) five Business Days prior to the Termination Date, unless otherwise agreed upon by the Administrative Agent and the provided that any Letter of Credit Issuer, provided that with a one-year tenor may provide for the extension thereof for additional one-year periods (which shall in no event shall such expiration extend beyond the date occur later than the L/C Maturity Date; referred to in clause (vy) each above). Each Letter of Credit shall be denominated in Dollars or an Alternative Currency; Dollars.
(via) no Each Letter of Credit shall be issued if it would be illegal under any applicable law for subject to the beneficiary Uniform Customs or, at the option of the Letter Issuing Lender, the ISP, and, to the extent not inconsistent therewith, the laws of Credit to have a Letter the State of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1New York.
(cb) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding The Issuing Lender shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not at any time be under any obligation obligated to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing hereunder if such Letter of Creditissuance would conflict with, or any law applicable to cause the Letter of Credit Issuer Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Participating Lender to eliminate the Letter exceed any limits imposed by, any applicable Requirement of Credit Issuer’s risk with respect to such Revolving Credit LenderLaw.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Letter of Credit Expiration Date, the Letter of Credit Issuer agreesIssuers agree, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Letter of Credit Expiration Date upon the request of, and for the direct or indirect benefit of, account of the Borrower and (or, so long as the Borrower is the primary obligor, for the account of the Borrower or any Restricted Subsidiaries, a letter of credit or Subsidiary (other than the Borrower)) letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the applicable Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effecteffect (or with respect to any Letter of Credit Issuer, would exceed such Letter of Credit Issuer’s Letter of Credit Commitment unless such Letter of Credit Issuer consents thereto); (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerthereof (except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Maturity Letter of Credit Expiration Date, in each case, unless otherwise agreed upon by the Administrative Agent, the Letter of Credit Issuer and, unless such applicable Letter of Credit has been Cash Collateralized or backstopped (in the case of a backstop only, on terms reasonably satisfactory to such Letter of Credit Issuer), the Revolving Credit Lenders; (viv) each the Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.113.1 and (vii) no Letter of Credit Issuer shall be under any obligation to issue any trade or commercial Letter of Credit except as otherwise agreed by such Letter of Credit Issuer.
(c) Upon at least one two Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Revolving Credit Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment (or with respect to a Letter of Credit Issuer, the Letters of Credit Outstanding with respect to Letters of Credit issued by such Letter of Credit Issuer shall not exceed such Letter of Credit Issuer’s Letter of Credit Commitment).
(d) [Reserved].
(e) The Letter of Credit Issuer Issuers shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof50,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative CurrencyDollars;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower has entered into arrangements reasonably satisfactory to the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderLender or such risk has been reallocated in accordance with Section 2.16.
(fe) The Letter of Credit Issuer Issuers shall not amend increase the Stated Amount of any Letter of Credit if the Letter of Credit Issuer Issuers would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(gf) The Letter of Credit Issuer Issuers shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer Issuers would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(hg) The Each Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the each Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerIssuers.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, (i) the Borrower may request that the US Letter of Credit Issuer agrees, in reliance upon issue for the agreements account of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct Borrower (or indirect benefit of, any Subsidiary of the Borrower so long as the Borrower is a joint and the Restricted Subsidiaries, several co-applicant with respect thereto) a standby letter of credit or letters of credit denominated in Dollars (each, a “US Letter of Credit”), and (ii) the Canadian Borrower may request that the Canadian Letter of Credit Issuer issue for the account of the Canadian Borrower (or any Subsidiary of the Canadian Borrower so long as the Canadian Borrower is a joint and several co-applicant with respect thereto) a standby letter of credit or letters of credit denominated in Canadian Dollars (each, a “Canadian Letter of Credit” and, together with the US Letters of Credit, the “Letters of Credit” and each, each a “Letter of Credit”) in such form as may be approved by the US Letter of Credit Issuer or the Canadian Letter of Credit Issuer, as the case may be, in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no US Letter of Credit shall be issued the Stated Amount of which, when added to the US Letters of Credit Outstanding at such time, would exceed the US Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no US Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ US Revolving Credit Exposures at the such time of the issuance thereof to exceed the US Total Revolving Credit Commitment then in effect; (iii) no Canadian Letter of Credit in an Alternative Currency shall be issued the Dollar Equivalent of the Stated Amount of which, when added to the Dollar Equivalent of the Canadian Letters of Credit Outstanding at such time, would exceed the Canadian Letter of Credit Commitment then in effect, (iv) no Canadian Letter of Credit shall be issued the Dollar Equivalent of the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time aggregate amount of the issuance thereof Canadian Revolving Credit Exposure at such time to exceed the Multicurrency Sublimit then in effect; Canadian Total Revolving Credit Commitment, (ivv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent or the Canadian Administrative Agent, as applicable, and the applicable Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party the Borrower or the Administrative Agent Canadian Borrower or the Required Revolving Credit Lenders any Lender stating that a Default or Event of Default has occurred and is continuing until such time as the such Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the US Letter of Credit Issuer or to the Canadian Administrative Agent and the Canadian Letter of Credit Issuer, as applicable (which notice the applicable Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the US Letter of Credit Commitment or the Canadian Letter of Credit Commitment, in each case in whole or in part, provided that, after giving effect to such termination or reduction, the US Letters of Credit Outstanding shall not exceed the US Letter of Credit Commitment and the Dollar Equivalent of the Canadian Letters of Credit Outstanding shall not exceed the Canadian Letter of Credit Commitment, as applicable.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request parties hereto agree that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Existing Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided be deemed to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with be US Letters of Credit issued for all purposes under this Agreement, without any further action by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerBorrower.
Appears in 1 contract
Samples: Credit Agreement (Visant Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthforth in this Agreement, at any time and from time to time after from the Original Closing Date and through the day that is sixty (60) days prior to the L/C Revolving Credit Maturity Date, the Issuing Lender shall issue such Letters of Credit as the Borrower may request upon the delivery of a written request in the form of Exhibit 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 Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding Liabilities shall not exceed the Letter of Credit Commitment, (iii) in no event shall the sum of (A) the Outstanding Revolving Credit Loans, and (B) the amount of all Letter of Credit Liabilities (after giving effect to all Letters of Credit requested) exceed the Total Revolving Credit Commitment, (iv) in no event shall the sum of the Outstanding Revolving Credit Loans, the Outstanding Term Loans, and the amount of all Letter of Credit Liabilities (after giving effect to any requested Letters of Credit) exceed the lesser of (X) the Total Commitment or (Y) the Unencumbered Pool Availability or cause a violation of the covenants set forth in §9.1 or §9.2, (v) 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 (vi) 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 Revolving Credit Lender is a Defaulting Lender, unless the Issuing Lender is satisfied that the participation therein will otherwise be fully allocated to the Revolving Credit 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, as applicable, have been satisfied unless it receives written notice from a Revolving Credit 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 Revolving Credit Lenders otherwise consent, the term of any Letter of Credit shall not exceed a period of time commencing on the issuance of the Letter of Credit and ending one year after the date of issuance thereof (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 Letter of Credit beyond the Revolving Credit 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 Revolving Credit Maturity Date so long as the Borrower delivers to the Issuing Lender no later than thirty (30) days prior to the Revolving Credit 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 Revolving Credit 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 an Authorized Monogram Officer 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 event of any conflict, the terms of this Agreement shall control.
(c) The Issuing Lender shall, subject to the conditions set forth in this Agreement, issue the Letter of Credit on or before five (5) Business Days following receipt of the documents last due pursuant to §2.10(b). Each Letter of Credit shall be in form and substance reasonably satisfactory to the Issuing Lender in its reasonable discretion.
(d) [Reserved].
(e) The Upon the issuance of a Letter of Credit, each Revolving Credit Issuer Lender shall not be under any obligation deemed to issue any Letter have purchased a participation therein from the Issuing Lender in an amount equal to its respective Revolving Credit Commitment Percentage of Credit if:
(i) any order, judgment or decree the amount of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable . No Revolving Credit Lender’s obligation to the participate in a Letter of Credit Issuer or shall be affected by any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of other Revolving Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer Lender’s failure to perform as required herein with respect to such Letter of Credit or any restrictionother Letter of Credit.
(e) Upon the issuance of each Letter of Credit, reserve or capital requirement the Borrower shall pay to the Issuing Lender (i) for which the its own account, a Letter of Credit Issuer is not otherwise compensated hereunderfronting fee calculated at the rate equal to one-eighth of one percent (0.125%) not in effect on per annum of the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance face amount of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount which fee shall not be less than $100,000 or 1,500 in any event) and an administrative charge of $250, and (ii) for the Dollar Equivalent thereof, accounts of the Revolving Credit Lenders (including the Issuing Lender) in the case accordance with their respective percentage shares of a commercial participation in such Letter of Credit, or $10,000 or a Letter of Credit fee calculated at the Dollar Equivalent thereof, in rate per annum equal to the case Applicable Margin then applicable to LIBOR Rate Loans on the face amount of a standby such Letter of Credit;
(iv) such . Such fees shall be payable in quarterly installments in arrears with respect to each Letter of Credit is denominated in a currency other than Dollars on the first day of each calendar quarter following the date of issuance and continuing on each quarter or an Alternative Currency;
(v) portion thereof thereafter, as applicable, or on any earlier date on which the Revolving Credit Commitments shall terminate and on the expiration or return of any Letter of Credit Issuer does not as Credit. In addition, the Borrower shall pay to the Issuing Lender for its own account within five (5) days of demand of the issuance date of such requested Letter Issuing Lender the standard issuance, documentation and service charges for Letters of Credit issue letters of credit in issued from time to time by the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Issuing Lender.
(f) The In the event that any amount is drawn under a Letter of Credit Issuer by the beneficiary thereof, the Borrower shall not amend any Letter reimburse the Issuing Lender by having such amount drawn treated as an outstanding Revolving Credit Base Rate Loan under this Agreement (the Borrower being deemed to have requested a Revolving Credit Base Rate Loan on such date in an amount equal to the amount of Credit if the Letter of Credit Issuer would not be permitted at such time to issue drawing and such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer amount drawn shall be treated as an outstanding Revolving Credit Base Rate Loan under no obligation this Agreement) and the Agent shall promptly notify each Revolving Credit Lender by telex, telecopy, email, telephone (confirmed in writing) or other similar means of transmission, and each Revolving Credit Lender shall promptly and unconditionally pay to amend any Letter of the Agent, for the Issuing Lender’s own account, an amount equal to such Revolving Credit if (A) the Letter of Lender’s Revolving Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary Commitment Percentage of such Letter of Credit does (to the extent of the amount drawn). If and to the extent any Revolving Credit Lender shall not accept make such amount available on the proposed amendment Business Day on which such draw is funded, such Revolving Credit Lender agrees to pay such Letter 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 Credit.
such draw and at the Federal Funds Effective Rate plus one percent (h1.0%) The for each day thereafter. Further, such Revolving Credit 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 Issuer shall act on behalf which such Revolving Credit 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 Revolving Credit Lenders with respect not so failing or refusing shall be entitled to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) a priority secured position for such amounts as provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.in
Appears in 1 contract
Samples: Credit Agreement (Monogram Residential Trust, Inc.)
Letters of Credit. (a) Subject Provided that no Event of Default or Default is continuing and subject to and upon the other terms and conditions herein set forthhereof, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, Bank agrees to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) for the account of Borrowers in such form as may be approved from time to time by Bank, subject to the following limitations:
(i) The face amount of the Letter of Credit Issuer in its reasonable discretion; provided that requested if and when issued must not cause the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each sum of the aggregate principal amount outstanding of all Revolving Loans plus the Letter of Credit issued for Usage to exceed the account of a Restricted Subsidiary.Borrowing Base;
(bii) Notwithstanding The face amount of the foregoing, (i) no Letter of Credit shall be requested if and when issued must not cause the Stated Amount of which, when added to the Letters Letter of Credit Outstanding at such time, would Usage to exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; Sublimit;
(iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary The face amount of the Letter of Credit requested for which Parent is the applicant, if and when issued, must not cause the sum of the aggregate principal amount outstanding of all Revolving Loans made to have a Letter or for the benefit of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as Parent, plus the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance Usage with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) respect to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not for which Parent is the applicant, to exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to itParent Sublimit;
(iiiv) the issuance of such Letter of Credit would violate one or more policies The face amount of the Letter of Credit Issuer applicable requested for which any Subsidiary Borrower is the applicant, if and when issued, must not cause the sum of the aggregate principal amount outstanding of all Revolving Loans made to letters or for the benefit of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and such Subsidiary Borrower, plus the Letter of Credit Issuer, such Letter Usage with respect to Letters of Credit for which such Subsidiary Borrower is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereofapplicant, in to exceed the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative CurrencySubsidiary Borrower Sublimit;
(v) the Letter of Credit Issuer does may not as have an expiry date or draw period which extends beyond the earlier to occur of (x) ten (10) days prior to the issuance Revolving Loans Maturity Date, or (y) 365 days after the date of such requested Letter issuance for standby Letters of Credit issue letters Credit, or (z) 180 days for documentary Letters of credit in the requested currency;Credit; and
(vi) such Letter The conditions specified in Section 4.2 shall have been satisfied on the date of Credit contains any provisions for automatic reinstatement issuance of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(hb) The Each Letter of Credit Issuer shall act on behalf (i) be denominated in Dollars, and (ii) be a standby or documentary letter of credit issued to support obligations of a Borrower or any Subsidiary, contingent or otherwise, to finance the Revolving Credit Lenders with respect to any Letters working capital and business needs of Credit issued by it and such Borrower or such Subsidiary in the documents associated therewith and the ordinary course of business.
(c) Each Letter of Credit Issuer shall have all be subject to the Uniform Customs or the ISP, as determined by Bank, in its Permitted Discretion, and, to the extent not inconsistent therewith, the laws of the benefits and immunities State of California.
(Ad) provided Bank shall not at any time be obligated to the Administrative Agent in Section 13 with respect to issue any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters hereunder if such issuance would conflict with, or cause Bank to exceed any limits imposed by its organizational or governing documents or by any applicable law, rule, regulation or treaty or determination of Credit issued by it an arbitrator or proposed a court or other governmental authority to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the which Bank is subject.
(e) Each drawing under any Letter of Credit Issuer with respect shall constitute a request by Borrowers to Bank for a Borrowing of a Revolving Loan as a Prime Lending Rate Portion. The date of such acts or omissions, and (B) as additionally provided herein with respect to drawing shall be deemed the Letter of Credit Issuerdate on which such Borrowing is made.
Appears in 1 contract
Samples: Credit Agreement (Jakks Pacific Inc)
Letters of Credit. (a) Subject to and upon Upon the terms and subject to the conditions herein set forthof this Agreement, and in reliance upon the representations, warranties and covenants of the Borrower made herein, each Issuing Bank agrees to issue, under the joint responsibilities of the Banks, 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 Closing Date to 30 days prior to the Revolving Credit Maturity Date; provided that the 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 at any time and from time to time after the Original Closing Date and prior to exceed the L/C Maturity DateAvailability in effect at such time; and provided, further that at the time the Borrower requests the issuance of a Letter of Credit Issuer agreesand after giving effect to the issuance thereof, in reliance there has not occurred and is not continuing a Default or an Event of 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 Availability, be added to the Loan Account as Revolving Credit Loans and shall be immediately due and payable upon the agreements of the Revolving Credit Lenders Maturity Date (or, if earlier, upon acceleration of the Loans), and (ii) if there is insufficient Availability, be immediately due and payable, bearing interest until paid at the rate set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary2.14.
(b) Notwithstanding To minimize the foregoing, (i) no risk of issuance of any Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, that would exceed the Letter of Credit Commitment then in effect; (ii) subject then-current L/C Availability, each Issuing Bank that is not the Administrative Agent shall, prior to clause (f) belowbecoming an Issuing Bank, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by 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 Issuer, provided that in no event shall such expiration date occur later than might exceed the then-current L/C Maturity Date; (v) each Availability and to permit the Administrative Agent to accurately bxxx the Borrower and account to the Banks for Letter of Credit fees payable 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 be denominated in Dollars or an Alternative Currency; (vi) no any Letter of Credit shall be issued if it would be illegal under any applicable law for drawn or outstanding that exceeds the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1then-current L/C Availability.
(c) Upon at least one Business Day’s prior written notice (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 its Commitment Percentage, and each Bank severally agrees that it shall be absolutely liable, without regard to the occurrence of any Default or telephonic notice promptly confirmed in writing) 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 Bank under each Letter of Credit to the extent that such amount is not reimbursed by the Borrower pursuant hereto. In addition, all Letters of Credit shall, unless the Administrative Agent and the Letter of Banks otherwise agree in writing, have a stated expiration date not to exceed one year and shall, in any event, expire not later than five (5) days prior to the Revolving Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit CommitmentMaturity Date.
(d) [Reserved]To evidence such Letters of 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 letter of credit application and agreement.
(e) The Letter Carryover LCs shall be deemed to be Letters of Credit Issuer shall not be under any obligation issued pursuant to issue any Letter this Section 2.17 for all purposes of Credit if:
the Loan Documents (i) any order, judgment or decree exclusive of the payment of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority fronting fee with jurisdiction over the Letter of Credit Issuer shall prohibit, or request respect thereto). It is anticipated that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed Carryover LCs will be replaced by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and Issuing Bank promptly after the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerClosing Date.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon Upon the terms and subject to the conditions herein set forth, the Borrower may request a Fronting Bank, at any time and from time to time after the Original Closing Date date hereof and prior to the L/C Maturity Termination Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request ofissue, and for subject to the direct or indirect benefit ofterms and conditions contained herein, the Borrower and the Restricted Subsidiariessuch Fronting Bank shall issue, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Borrower one or more Letters of Credit Outstanding at such timeCredit, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided PROVIDED that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for after giving effect to such issuance (i) the beneficiary of the aggregate Letter of Credit to have a Outstandings shall exceed $10,000,000, (ii) the aggregate Letter of Credit issued Outstandings, when added to the aggregate outstanding principal amount of the Loans, would exceed the lesser of the Total Commitment and the amount calculated in its favor; accordance with Section 2.02(a) or (iii) the provisions of Section 2.02 would be violated thereby and (vii) PROVIDED FURTHER that no Letter of Credit shall be issued by a Letter of Credit Issuer after it has if the Fronting Bank shall have received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating Banks that a Default or Event of Default has occurred and is continuing until the conditions to such time as the issuance have not been met.
(b) No Letter of Credit Issuer shall have received a written notice expire later than the earlier of (x) rescission twelve months from the date of issuance of such notice from the party or parties originally delivering such notice or Letter of Credit and (y) 60 days after the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Maturity Date, PROVIDED that if any Letter of Credit Issuer (which shall be outstanding on the Administrative Agent shall promptly notify the applicable Lenders)Termination Date, the Borrower shall have shall, at or prior to the rightTermination Date, on any day, permanently to terminate or reduce the Letter (i) cause all Letters of Credit Commitment which expire after the Termination Date to be returned to the Fronting Bank undrawn and marked "cancelled" or (ii) if the Borrower is unable to do so in whole or in part, provided that, after giving effect either (x) provide a "back-to-back" letter of credit to one or more Fronting Banks in a form reasonably satisfactory to such Fronting Bank and the Agent, issued by a bank satisfactory to such Fronting Bank and the Agent, in an amount equal to 105% of the then undrawn stated amount of all outstanding Letters of Credit issued by such Fronting Banks and/or (y) deposit cash in the Letter of Credit Account in an amount equal to 105% of the then undrawn stated amount of all outstanding Letters of Credit as collateral security for the Borrower's reimbursement obligations in connection therewith, such cash to be remitted to the Borrower upon the expiration, cancellation or other termination or reductionsatisfaction of such reimbursement obligations.
(c) The Borrower shall pay to each Fronting Bank, in addition to such other fees and charges as are specifically provided for in Section 2.21 hereof, such fees and charges in connection with the issuance and processing of the Letters of Credit Outstanding shall not exceed the Letter issued by such Fronting Bank as are customarily imposed by such Fronting Bank from time to time in connection with letter of Credit Commitmentcredit transactions.
(d) [Reserved]Drafts drawn under each Letter of Credit shall be reimbursed by the Borrower in Dollars not later than the first Business Day following the date of draw and shall bear interest from the date of draw until the first Business Day following the date of draw at a rate per annum equal to the Alternate Base Rate PLUS 1/2 of 1% and thereafter until reimbursed in full at a rate per annum equal to the Alternate Base Rate PLUS 2-1/2% (computed on the basis of the actual number of days elapsed over any year of 360 days). The Borrower shall effect such reimbursement (x) if such draw occurs prior to the Termination Date (or the earlier date of termination of the Total Commitment), in cash or through a Borrowing without the satisfaction of the conditions precedent set forth in Section 4.02 or (y) if such draw occurs on or after the Termination Date (or the earlier date of termination of the Total Commitment), in cash. Each Bank agrees to make the Loans described in clause (x) of the preceding sentence notwithstanding a failure to satisfy the applicable lending conditions thereto or the provisions of Section 2.02 or the occurrence of the Termination Date.
(e) The Letter Immediately upon the issuance of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) by any orderFronting Bank, judgment such Fronting Bank shall be deemed to have sold to each Bank other than such Fronting Bank and each such other Bank shall be deemed unconditionally and irrevocably to have purchased from such Fronting Bank, without recourse or decree warranty, an undivided interest and participation, to the extent of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Bank's Commitment Percentage, in such Letter of Credit, or each drawing thereunder and the obligations of the Borrower and the Guarantors under this Agreement with respect thereto. Upon any law applicable change in the Commitments pursuant to the Section 10.03, it is hereby agreed that with respect to all Letter of Credit Issuer or any request or directive (whether or not having Outstandings, there shall be an automatic adjustment to the force of law) from any Governmental Authority with jurisdiction over participations hereby created to reflect the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies new Commitment Percentages of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed assigning and assignee Banks. Any action taken or omitted by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is a Fronting Bank under or in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of connection with a commercial Letter of Credit, if taken or $10,000 or the Dollar Equivalent thereof, omitted in the case absence of a standby Letter of Credit;
(iv) gross negligence or willful misconduct, shall not create for such Letter of Credit is denominated in a currency Fronting Bank any resulting liability to any other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderBank.
(f) The Letter of Credit Issuer shall not amend In the event that a Fronting Bank makes any payment under any Letter of Credit if and the Letter Borrower shall not have reimbursed such amount in full to such Fronting Bank pursuant to this Section, the Fronting Bank shall promptly notify the Agent, which shall promptly notify each Bank of Credit Issuer would such failure, and each Bank shall promptly and unconditionally pay to the Agent for the account of the Fronting Bank the amount of such Bank's Commitment Percentage of such unreimbursed payment in Dollars and in same day funds. If the Fronting Bank so notifies the Agent, and the Agent so notifies the Banks prior to 11:00 a.m. (New York City time) on any Business Day, such Banks shall make available to the Fronting Bank such Bank's Commitment Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Bank shall not be permitted have so made its Commitment Percentage of the amount of such payment available to the Fronting Bank, such Bank agrees to pay to such Fronting Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Agent for the account of such Fronting Bank at such time the Federal Funds Effective Rate. The failure of any Bank to issue such Letter make available to the Fronting Bank its Commitment Percentage of Credit in its amended form any payment under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) shall not relieve any other Bank of its obligation hereunder to make available to the Fronting Bank its Commitment Percentage of any payment under any Letter of Credit Issuer would have on the date required, as specified above, but no obligation at such time Bank shall be responsible for the failure of any other Bank to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment make available to such Letter Fronting Bank such other Bank's Commitment Percentage of Credit.
(h) The Letter any such payment. Whenever a Fronting Bank receives a payment of Credit Issuer a reimbursement obligation as to which it has received any payments from the Banks pursuant to this paragraph, such Fronting Bank shall act on behalf of the Revolving Credit Lenders with respect pay to any Letters of Credit issued by it each Bank which has paid its Commitment Percentage thereof, in Dollars and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining same day funds, an amount equal to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerBank's Commitment Percentage thereof.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Paragon Trade Brands Inc)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Facility Maturity Date, the each Letter of Credit Issuer agrees, in reliance upon upon, among other things, the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct or indirect benefit of, account of the Borrower and (or, so long as the Borrower is the primary obligor, for the account of Holdings or any Restricted Subsidiaries, a letter of credit Subsidiary (other than the Borrower)) one or letters of credit (the “more Letters of Credit” and each, a “Letter of Credit”) Credit in such form as may be approved by the applicable Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, discretion and jointly and severally liable with respect to, each in an aggregate amount not to exceed an amount equal to such Letter of Credit issued for the account of a Restricted SubsidiaryIssuer’s corresponding Revolving Credit Commitment Percentage.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of after giving effect to the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerthereof (except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, the applicable Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized in an amount equal to the Minimum Collateral Amount or backstopped (in the case of a backstop only, on terms reasonably satisfactory to the applicable Letter of Credit Issuer), the Revolving Credit Lenders; (viv) each the Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the such Letter of Credit to have a such Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a any Letter of Credit Issuer Issuers after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer Issuers shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one two Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer Issuers (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved]The parties hereto agree that the Existing Letters of Credit shall be deemed to be Letters of Credit for all purposes under this Agreement, without any further action by the Borrower, the Letter of Credit Issuers or any other Person.
(e) The No Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the such Letter of Credit Issuer from issuing such Letter of Credit, or any Requirement of Law or law applicable to the such Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the such Letter of Credit Issuer shall prohibit, or request that the such Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the such Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which the such Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the such Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the such Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the applicable Letter of Credit Issuer now or hereafter in effect and applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the any applicable Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit10,000;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative CurrencyDollars;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower has entered into arrangements reasonably satisfactory to the applicable Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the such Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderLender or such risk has been reallocated in accordance with Section 2.16.
(f) The No Letter of Credit Issuer shall not amend increase the Stated Amount of any Letter of Credit if the such Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Each Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the such Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Each Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the each Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 12 with respect to any acts taken or omissions suffered by the such Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 12 included the such Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the such Letter of Credit Issuer.
Appears in 1 contract
Samples: Credit Agreement (Visant Corp)
Letters of Credit. (a) Subject (i) Prior to the Closing Date, the Existing Issuing Lender(s) have issued the Existing Letters of Credit which, from and upon after the Closing Date, shall constitute Letters of Credit hereunder. Upon the terms and subject to the conditions herein set forthhereof, at any time each Issuing Lender agrees to issue standby letters of credit (the letters of credit issued on and after the Closing Date pursuant to this Section 2.25, together with the Existing Letters of Credit, collectively, the “Letters of Credit”) payable in Dollars from time to time after the Original Closing Date and prior to the earlier of the Maturity Date and the termination of the Commitments, upon the request of the Borrower or any Subsidiary Borrower, provided that (A) neither the Borrower nor any Subsidiary Borrower shall request that any Letter of Credit be issued or reinstated if, after giving effect thereto, the sum of the then current L/C Maturity DateExposure plus the aggregate Loans then outstanding would exceed the Total Commitment, the (B) in no event shall any Issuing Lender issue (x) any Letter of Credit Issuer agreeshaving an expiration date later than five Business Days before the Maturity Date or (y) any Letter of Credit having an expiration date more than one year after its date of issuance, provided that any Letter of Credit with a one-year tenor may provide for the renewal thereof for additional one-year periods (which shall in reliance upon no event extend beyond the agreements date referred to in clause (x) above), (C) neither Borrower nor any Subsidiary Borrower shall request that an Issuing Lender issue or reinstate any Letter of the Revolving Credit Lenders set forth in this Section 3if, after giving effect to issue from time to time from the Original Closing Date through such issuance or reinstatement, the L/C Maturity Date Exposure would exceed $1,750,000,000 and (D) an Issuing Lender shall be prohibited from issuing Letters of Credit hereunder upon the occurrence and during the continuance of an Event of Default (provided that such Issuing Lender shall have received notice of such Event of Default pursuant to Section 8.4 hereof and provided further that such notice shall be received at least 24 hours prior to the date on which any Letter of Credit is to be issued). The Administrative Agent will, upon request ofof any Issuing Lender, and for confirm the direct or indirect benefit of, the Borrower total amount of L/C Exposure and the Restricted Subsidiaries, a letter aggregate outstanding Loans to such Issuing Lender.
(ii) Immediately upon the issuance of credit or letters of credit (the “Letters of Credit” and each, a “each Letter of Credit”) , each Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from the applicable Issuing Lender, a participation in such form as may be approved Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Lender, such Lender’s Commitment Percentage of the Total Commitment, multiplied by the amount paid by such Issuing Lender in respect of a Letter of Credit, issued by such Issuing Lender and not reimbursed by the Borrower or the relevant Subsidiary Borrower on the date due as provided in this Section 2.25, or of any reimbursement payment required to be refunded to the Borrower or the relevant Subsidiary Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph 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 Issuer or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(iii) Neither the Administrative Agent, the Lenders, any Issuing Lender, nor any of their Related Parties, shall have any liability or responsibility by reason of or in its reasonable discretionconnection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder, 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 any Issuing Lender; provided that the foregoing shall not be construed to excuse any Issuing Lender from liability to the Borrower shall be or the relevant Subsidiary Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower and any Subsidiary Borrower to the extent permitted by applicable law) suffered by the Borrower or the relevant Subsidiary Borrower that are caused by such Issuing Lender’s failure to exercise care when determining whether drafts and other documents presented under a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for comply with the account of a Restricted Subsidiaryterms thereof.
(biv) Notwithstanding the foregoing, (i) no Each Letter of Credit may, at the option of the applicable Issuing Lender, provide that such Issuing Lender may (but shall not be required to) pay all or any part of the maximum amount which may at any time be available for drawing thereunder to the beneficiary thereof upon the occurrence of an Event of Default and the acceleration of the maturity of the Loans, provided that, if payment is not then due to the beneficiary, such Issuing Lender shall deposit the funds in question in an account with such Issuing Lender to secure payment to the beneficiary and any funds so deposited shall be issued the Stated Amount of which, when added paid to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit if conditions to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party such payment are satisfied or returned to the Administrative Agent for distribution to the Lenders (or, if all Obligations shall have been paid in full in cash, to the Borrower or the Required Revolving Credit Lenders stating that a Default or Event of Default relevant Subsidiary Borrower) if no payment to the beneficiary has occurred been made and is continuing until such time as the final date available for drawings under the Letter of Credit Issuer has passed. Each payment or deposit of funds by an Issuing Lender as provided in this paragraph shall have received be treated for all purposes of this Agreement as a written notice of (x) rescission of drawing duly honored by such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Issuing Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such related Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Five Year Competitive Advance and Revolving Credit Agreement (Cendant Corp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct account of the Borrowers (or, so long as the Borrowers are the primary obligor, for the account of Holdings or indirect benefit of, any Restricted Subsidiary (other than the Borrower and the Restricted Subsidiaries, a letter of credit or Borrowers)) letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effecteffect (or with respect to any Letter of Credit Issuer, exceed such Letter of Credit Issuer’s Letter of Credit Commitment); (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerthereof (except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, the Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized or backstopped (in the case of a backstop only, on terms reasonably satisfactory to such Letter of Credit Issuer), the Revolving Credit Lenders; (viv) each Letter the LetterLetters of Credit shall be denominated in Dollars or an Alternative any other Available Currency; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1. Notwithstanding anything herein to the contrary, the following Letter of Credit Issuers shall not be obligated to issue any Letters of Credit denominated in the following Available Currencies, with respect to (i) BNP Paribas and HSBC Bank USA, N.A., Brazilian Real and Colombian Peso, (ii) Royal Bank of Canada, Brazilian Real, Chinese Yuan, Colombian Peso and Qatari Riyal, (iii) Barclays Bank Plc, Brazilian Real, Chinese Yuan, Colombian Peso, Indian Rupee, Qatari Riyal and United Arab Emirates Dirham, (iv) Deutsche Bank AG New York Branch, Australian Dollars, Brazilian Real, Canadian Dollars, Chinese Yuan, Colombian Peso, Indian Rupee, Mexican Peso, Qatari Riyal and United Arab Emirates Dirham, (v) Xxxxxx Xxxxxxx Senior Funding, Inc., Brazilian Real, Chinese Yuan, Colombian Peso, Indian Rupee, Qatari Riyal and United Arab Emirates Dirham, (vi) MUFG Bank, LTD., Brazilian Real, Colombian Peso, Indian Rupee, Qatari Riyal and United Arab Emirates Dirham and (vii) Xxxxx Fargo Bank, National Association, Colombian Peso and Qatari Riyal.
(c) Upon at least one two Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower Borrowers shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment (or with respect to a Letter of Credit Issuer, the Letters of Credit outstanding with respect to Letters of Credit issued by such Letter of Credit Issuer shall not exceed such Letter of Credit Issuer’s Letter of Credit Commitment).
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof50,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative another Available Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrowers have entered into arrangements reasonably satisfactory to the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderLender or such risk has been reallocated in accordance with Section 2.16.
(fe) The Letter of Credit Issuer shall not amend increase the Stated Amount of any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(gf) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(hg) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Credit Agreement (GoDaddy Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthhereof, at any time each L/C Issuer agrees to issue letters of credit denominated in Dollars or (if and to the extent agreed in writing from time to time after the Original Closing Date and prior to the between such L/C Maturity DateIssuer and the Borrower, the Letter and subject to any sublimit for Letters of Credit Issuer agrees, denominated in reliance upon the agreements of the Revolving Credit Lenders set forth any currency so agreed by such parties) in this Section 3, to issue one or more Alternative Currencies hereunder from time to time from before the Original Closing Date through tenth day before the L/C Revolver Maturity Date upon the request of, and for the direct or indirect benefit of, of the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each”); provided that, a “immediately after each Letter of Credit”) in such form as may be approved by Credit is issued (including through any extension or renewal), the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding Liabilities shall not exceed the Letter of Credit CommitmentCommitment and the aggregate amount of the Revolving Exposures shall not exceed the aggregate amount of the Available Revolving Commitments. Upon the date of issuance by an L/C Issuer of a Letter of Credit, the L/C Issuer shall be deemed, without further action by any party hereto, to have sold to each Revolving Lender, and each Revolving Lender shall be deemed, without further action by any party hereto, to have purchased from the L/C Issuer, a participation in such Letter of Credit and all of the related Letter of Credit Liabilities pro rata to their respective Revolving Percentages.
(b) The Borrower shall give the L/C Issuer notice (a copy of which shall be provided to the Agent) at least three Local Business Days prior to the requested issuance of a Letter of Credit specifying the date such Letter of Credit is to be issued and the amount and currency thereof (which shall be Dollars or an Alternative Currency agreed between the Borrower and L/C Issuer), and describing the terms of such Letter of Credit and the nature of the transactions to be supported thereby (such notice, including any such notice given in connection with the extension or renewal of a Letter of Credit, a “Notice of Issuance”). Upon receipt of a Notice of Issuance, the L/C Issuer shall promptly notify the Agent, and the Agent shall promptly notify each Revolving Lender of the contents thereof and of the Dollar Equivalent Amount of such Revolving Lender’s participation in such Letter of Credit. The issuance by the L/C Issuer of each Letter of Credit shall, in addition to the conditions precedent set forth in Section 3.03, be subject to the conditions precedent that such Letter of Credit shall be in such form and contain such terms as shall be satisfactory to the L/C Issuer and that the Borrower shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the L/C Issuer shall have reasonably requested. The Borrower shall also pay to the L/C Issuer for its own account issuance, drawing, amendment and extension charges, in Dollars or in such Alternative Currency, and in the amounts and at the times as agreed between the Borrower and the L/C Issuer. The extension or renewal of any Letter of Credit shall be deemed to be an issuance of such Letter of Credit, and if any Letter of Credit contains a provision pursuant to which it is deemed to be extended unless notice of termination is given by the L/C Issuer, upon timely notice to the L/C Issuer from the Borrower requesting termination of such Letter of Credit, the L/C Issuer shall timely give such notice of termination unless it has theretofore timely (in accordance with any application or other relevant documentation applicable thereto) received a Notice of Issuance and the other conditions to issuance of a Letter of Credit have also theretofore been met with respect to such extension. No Letter of Credit shall have a term extending or be extendible beyond the date which is ten days prior to the Revolver Maturity Date.
(c) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Agent and the Agent shall promptly give notice (a “Draw Notice”) to the Borrower and each Revolving Lender of the Dollar Equivalent Amount of such drawing determined as of such Valuation Date, and the amount to be paid as a result of such demand or drawing and the payment date. The Borrower and each Revolving Lender hereby irrevocably and unconditionally agree that any reimbursement owed by such Person to the L/C Issuer hereunder in respect of any Letter of Credit, whether stated in Dollars or in an Alternative Currency, shall be in US Dollars in the amount of the Dollar Equivalent Amount in respect thereof. Upon receipt of a Draw Notice by the Borrower, the Borrower shall be irrevocably and unconditionally obligated to reimburse the L/C Issuer in US Dollars the Dollar Equivalent Amount of any amounts paid by the L/C Issuer upon any drawing under any Letter of Credit, without presentment, demand, protest or other formalities of any kind on the second Domestic Business Day following the date of receipt, all determined at the Dollar Equivalent Amount of such drawing on the date of payment by the L/C Issuer. Regardless of if and when a Draw Notice is given to or received by the Borrower, all such amounts paid by the L/C Issuer and remaining unpaid by the Borrower shall bear interest calculated on the Dollar Equivalent Amount thereof and payable on demand, for each day from and including the date of payment by the L/C Issuer until paid at a rate per annum equal to (x) to but not including the due date determined in accordance with the preceding sentence, the rate applicable to Base Rate Revolving Loans for such day and (y) on and after such due date, the sum of 2% plus the rate applicable to Base Rate Revolving Loans for such day. In addition, each Revolving Lender will pay to the Agent, for the account of the L/C Issuer, immediately upon the L/C Issuer’s demand at any time during the period commencing after such drawing until reimbursement therefor in full by the Borrower, an amount in US Dollars equal to such Lender’s ratable share of the Dollar Equivalent Amount of such drawing (in proportion to its participation therein), together with interest on such amount for each day from the date of the L/C Issuer demand for such payment (or, if such demand is made after 12:00 Noon (New York City time) on such date, from the next succeeding Domestic Business Day) to the date of payment by such Lender of such amount at the Federal Funds Rate (the obligation of any Revolving Lender pursuant to this sentence, its “Unreimbursed Amount Obligations”). The L/C Issuer will pay to each Revolving Lender ratably all amounts received from the Borrower for application in payment of its reimbursement obligations in respect of any Letter of Credit, but only to the extent such Revolving Lender has made payment to the L/C Issuer in respect of such Letter of Credit pursuant hereto (including pursuant to clause (d) below).
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable Notwithstanding anything to the Letter of Credit Issuer or any request or directive contrary in clause (whether or not having the force of lawc) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibitabove, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of if any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunderUnreimbursed Amount Obligation, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect when added to such Revolving Credit Lender.
’s Other Revolving Exposure (fas defined below) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in time, exceeds its amended form under Revolving Commitment (the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary amount of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as excess, if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissionsany, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.the
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Original Closing Date and prior to the earlier of (i) the L/C Facility Maturity Date and (ii) the Revolving Credit Termination Date, the each Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, account of the Borrower (or, so long as the Borrower is the primary obligor, for the account of Holdings or any Subsidiary) trade and the Restricted Subsidiaries, a letter of credit or letters of credit (the “standby Letters of Credit” and each, a “Letter of Credit”) Credit in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no unless otherwise agreed to by the Letter of Credit in an Alternative Currency shall be issued Issuer and the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) Administrative Agent, each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereofthereof (except as set forth in Section 3.2(d)); provided, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerin each case, provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, the Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized, the applicable Revolving Lenders; (viv) each the Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one three Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in partpart without prepayment or penalty; provided, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.. The Borrower, with the consent of the Required Revolving Credit Lenders and each of the Letter of Credit Issuers providing such increase, shall have the right, on any day, to increase the Letter of Credit Commitment in an amount up to the Revolving Credit Commitments on such date. LEGAL_US_E # 167910103.1167910103.8
(d) [Reserved]Notwithstanding anything to the contrary provided in this Agreement, the Borrower and the Lenders hereby acknowledge and agree that the Existing PSA Letters of Credit shall constitute Letters of Credit under this Agreement from and after the Closing Date with the same effect as if such Existing PSA Letters of Credit were issued by the Letter of Credit Issuers at the request of the Borrower on the Closing Date. The Borrower hereby assumes the Reimbursement Obligations in respect of the Existing PSA Letters of Credit and agrees to be the primary obligor in respect thereof.
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more of the policies of the Letter of Credit Issuer now or hereafter applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 50,000 (or such lower amount as may be agreed to by the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of CreditCredit Issuer);
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative CurrencyDollars;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder;
(vi) the Stated Amount of such Letter of Credit would cause the aggregate Stated Amount of all outstanding Letters of Credit issued by the Letter of Credit Issuer to exceed the aggregate amount of such Letter of Credit Issuer’s Letter of Credit Percentage of the Letter of Credit Commitment; or
(vii) if a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 Lender Default exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower has entered into arrangements reasonably satisfactory to the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with 154 LEGAL_US_E # 167910103.1167910103.8 respect to such Revolving Credit LenderLender or such risk has been reallocated in accordance with Section 2.16.
(f) The Letter of Credit Issuer shall not amend increase the Stated Amount of any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if if
(A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: First Lien Credit Agreement (Aveanna Healthcare Holdings, Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Credit Agreement (First Data Corp)
Letters of Credit. (a) Subject to and upon Upon the terms and subject to the conditions herein set forth, the Borrower may request the Bank, at any time and from time to time after the Original Closing Date date of satisfaction of the conditions set forth in Section 4.01 and prior to the L/C Maturity Termination Date, to issue, and, subject to the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, terms and for the direct or indirect benefit ofconditions contained herein, the Borrower and the Restricted SubsidiariesBank shall issue, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(bx) Notwithstanding the foregoingBorrower, one or more Replacement Letters of Credit for the benefit of the Borrower or its Subsidiary Yawga Energy Products LLC or (iy) the Borrower one or more New Letters of Credit, provided that no Letter of Credit shall be issued if: (i) the Stated Amount conditions to such issuance set forth in this Agreement have not been met, (ii) after giving effect to such issuance the aggregate Letter of whichCredit Outstandings shall exceed the Total Commitment or (iii) the requested Letter of Credit shall expire later than one hundred eighty (180) days following the scheduled Maturity Date.
(b) Once a Replacement Letter of Credit or New Letter of Credit is issued pursuant to the terms hereof, when added the Replacement L/C Commitment or the New L/C Commitment, as the case may be, shall be automatically and permanently reduced by an amount equal to the face amount of such Replacement Letter of Credit or New Letter of Credit, provided, however, that notwithstanding such reduction of the Replacement L/C Commitment, a new Replacement Letter of Credit may be issued in favor of the beneficiary of an Existing Letter of Credit (x) in substitution for that portion of the back-to-back Replacement Letter of Credit that was issued in favor of the issuer of such Existing Letter of Credit in respect of such Existing Letter of Credit and (y) upon the reduction of the back-to-back Replacement Letter of Credit issued to such issuer in an amount corresponding to the amount of such substitute Letter of Credit (or in advance of such reduction and in the amount of the anticipated reduction if so requested by the Borrower).
(c) The Borrower shall pay to the Bank, in addition to the fees and charges that are specifically provided for in Section 2.07 hereof, such other fees and charges in connection with the issuance and processing of the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and Bank as are customarily imposed by the Letter Bank from time to time in connection with letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; credit transactions.
(vd) Drafts drawn under each Letter of Credit shall be denominated reimbursed by the Borrower in Dollars not later than the first Business Day following the date of draw and shall bear interest from the date of draw until the first Business Day following the date of draw at a rate per annum equal to the Alternate Base Rate plus 2% and thereafter on the unreimbursed portion until reimbursed in full at a rate per annum equal to the Alternate Base Rate plus 4% (computed on the basis of the actual number of days elapsed over a year of 360 days or an Alternative Currency; (vi) no when the Alternate Base Rate is based on the Prime Rate, a year with 365 days or 366 days in a leap year). Draws under each Letter of Credit shall be issued if it would be illegal under any applicable law for reimbursed from cash maintained in the beneficiary Cash Collateral Account. The Borrower hereby authorizes the Bank to withdraw from the Cash Collateral Account funds equal to the amount of the draw under each Letter of Credit drawn and the Bank agrees to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until make such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice withdrawal from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least Cash Collateral Account not later than one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to Day following the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case date of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of draw under a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Letter of Credit and Guaranty Agreement (Agway Inc)
Letters of Credit. (ai) Subject U.S. LETTERS OF CREDIT. Each payment of U.S. LC Obligations shall be allocated to and upon the terms and conditions herein set fortheach U.S. Revolving Lender pro-rata in accordance with its U.S. Revolving Commitment Percentage; PROVIDED that, at if any time and from time U.S. Revolving Lender shall have failed to time after the Original Closing Date and prior pay its applicable pro-rata share of any U.S. LC Disbursement, then any amount to which such U.S. Revolving Lender would otherwise be entitled pursuant to this SUBSECTION (b) shall instead be payable to the L/C Maturity DateU.S. Issuing Lender; PROVIDED, FURTHER, that in the Letter of Credit Issuer agreesevent any amount paid to any U.S. Revolving Lender pursuant to this SUBSECTION (b) is rescinded or must otherwise be returned by the U.S. Issuing Lender, in reliance upon the agreements of the each U.S. Revolving Credit Lenders set forth in this Section 3Lender shall, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request ofof the Issuing Lender, and for repay to the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued Canadian Administrative Agent for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoingU.S. Issuing Lender the amount so paid to such U.S. Revolving Lender, (i) no Letter of Credit shall be issued with interest for the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after period commencing on the date of issuance thereof, unless otherwise agreed upon such payment is returned by the Administrative Agent and U.S. Issuing Lender until the Letter of Credit Issuerdate the U.S. Issuing Lender receives such repayment at a rate per annum equal to, provided that in no event shall during the period to but excluding the date two Business Days after such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders)request, the Borrower shall have the rightFederal Funds Rate, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reductionand thereafter, the Letters of Credit Outstanding shall not exceed the Letter of Credit CommitmentBase Rate plus 2.00% per annum.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) CANADIAN LETTERS OF CREDIT. Each payment of Canadian LC Obligations shall be allocated to each Canadian Revolving Lender pro-rata in accordance with its Canadian Revolving Commitment Percentage; PROVIDED that, if any Canadian Revolving Lender shall have failed to pay its applicable pro-rata share of any Canadian LC Disbursement, then any amount to which such Canadian Revolving Lender would otherwise be entitled pursuant to this SUBSECTION (b) shall instead be payable to the issuance of such Letter of Credit would violate one Canadian Issuing Lender; PROVIDED, FURTHER, that in the event any amount paid to any Canadian Revolving Lender pursuant to this SUBSECTION (b) is rescinded or more policies must otherwise be returned by the Canadian Issuing Lender, each Canadian Revolving Lender shall, upon the request of the Letter Canadian Issuing Lender, repay to the Canadian Administrative Agent for the account of Credit Issuer applicable the Canadian Issuing Lender the amount so paid to letters of credit generally;
(iii) except as otherwise agreed such Canadian Revolving Lender, with interest for the period commencing on the date such payment is returned by the Administrative Agent Canadian Issuing Lender until the date the Canadian Issuing Lender receives such repayment at a rate per annum equal to, during the period to but excluding the date two Business Days after such request, the Federal Funds Rate, and thereafter, the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, Base Rate plus 2.00% per annum (in the case of a commercial Letter of Credit, or $10,000 Canadian LC Obligations denominated in U.S. Dollars) or the Dollar Equivalent thereofCDOR Rate, and thereafter, the C$ Prime Rate plus 2.00% per annum (in the case of a standby Letter of Credit;
(iv) such Letter of Credit is Canadian LC Obligations denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderCanadian Dollars).
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthhereof and of Applicable Law, at any time and the Issuing Bank agrees to issue Letters of Credit payable in Dollars from time to time after the Original Closing Date and prior to the Revolving Commitment Termination Date upon the request of the Borrower, provided, however, that (A) the Borrower shall not request that any Letter of Credit be issued if, after giving effect thereto, the sum of the then current L/C Maturity DateExposure, plus the Letter of Credit Issuer agrees, in reliance upon the agreements aggregate principal amount of the Revolving Credit Lenders set forth Loans then outstanding, would exceed the lesser of (i) the then current amount of the Borrowing Base minus the then outstanding principal amount of Term Loans and (ii) the Total Revolving Credit Commitments then in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request ofeffect, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”B) in such form as may be approved by no event shall the Issuing Bank issue any Letter of Credit Issuer in having an expiration date (x) later than five Business Days prior to the Revolving Credit Maturity Date or pursuant to which drafts drawn thereunder would be payable later than five Business Days prior to the Revolving Credit Maturity Date or (y) more than one year after its reasonable discretionissuance (or extension); provided that that, subject to the Borrower shall be foregoing (including without the limitation in clause (x)), a co-applicant, and jointly and severally liable with respect to, each standby Letter of Credit issued may by its terms be automatically extended for the account of a Restricted Subsidiaryone or more successive periods each not to exceed one year.
(b) Notwithstanding Immediately upon the foregoing, (i) no issuance of each Letter of Credit shall be issued the Stated Amount of whichCredit, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total each Lender holding a Revolving Credit Commitment then shall be deemed to, and hereby agrees to, have irrevocably purchased from the Issuing Bank a participation in effect; (iii) no such Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; accordance with such Lender’s Revolving Credit Percentage.
(ivc) each Each Letter of Credit may, at the option of the Issuing Bank, provide that the Issuing Bank may (but shall have not be required to) pay all or any part of the maximum amount which may at any time be available for drawing thereunder to the beneficiary thereof upon the occurrence and continuation of an expiration date occurring no later than one year after the date Event of issuance thereof, unless otherwise agreed upon by the Administrative Agent Default and the Letter acceleration of Credit Issuerthe maturity of the Loans, provided that that, if payment is not then due to the beneficiary, the Issuing Bank may deposit the funds in no event shall such expiration date occur later than question in a segregated account with the L/C Maturity Date; (v) each Letter of Credit Issuing Bank to secure payment to the beneficiary and any funds so deposited shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for paid to the beneficiary of the Letter of Credit if conditions to such payment are satisfied or returned to the Issuing Bank (or, (x) if all Obligations shall have a Letter of Credit issued been paid in its favor; full in cash, to the Borrower or (y) if the Lenders shall have reimbursed the Issuing Bank for such amounts pursuant to the terms hereof, to the Lenders) if no payment to the beneficiary has been made and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as final date available for drawings under the Letter of Credit Issuer has passed. Each payment or deposit of funds by the Issuing Bank as provided in this paragraph shall have received be treated for all purposes of this Credit Agreement as a written notice of (x) rescission of such notice from drawing duly honored by the party or parties originally delivering such notice or (y) Issuing Bank under the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the related Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit CommitmentCredit.
(d) [Reserved].
(e) The Letter Whenever the Borrower desires the issuance of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such a Letter of Credit, or any law applicable it shall deliver to the Letter Issuing Bank and the Administrative Agent a written notice no later than 2:00 p.m., New York City time, at least three Business Days prior to the proposed date of Credit Issuer or any request or directive issuance. Such notice shall specify (whether or not having i) the force proposed date of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer issuance (which shall prohibitbe a Business Day), or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance face amount of such the Letter of Credit would violate one or more policies Credit, (iii) the expiration date of the Letter of Credit Issuer applicable to letters and (iv) the name and address of credit generally;
(iii) except as otherwise agreed the beneficiary. Such notice shall be accompanied by a brief description of the Administrative Agent underlying transaction and upon request of the Letter Issuing Bank, the Borrower shall provide additional details regarding the underlying transaction. Concurrently with the giving of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case written notice of a commercial request for the issuance of a Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of Borrower shall specify a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as precise description of the issuance date of such requested Letter of Credit issue letters of credit in documents and the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default verbatim text of any Revolving Credit Lender’s obligations certificate to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) presented by the beneficiary of such Letter of Credit does which, if presented by such beneficiary prior to the expiration date of the Letter of Credit, would require the Issuing Bank to make payment under the Letter of Credit; provided, however, that the Issuing Bank, in its reasonable discretion, may require customary changes in any such documents and certificates. Promptly after receipt of such notice, the Administrative Agent shall notify each Lender of the issuance and the amount of each such Lender’s respective participation therein. At the Borrower’s request, the Issuing Bank shall provide the Borrower with a copy of the form of Letter of Credit to be issued for the Borrower’s review and approval prior to issuance.
(e) The payment of drafts under any Letter of Credit shall be made in accordance with the terms of such Letter of Credit and the Uniform Customs and Practice for Documentary Credits, UCP 500, promulgated by the International Chamber of Commerce, as adopted or amended from time to time and, to the extent not inconsistent therewith, the laws of the State of New York. The Issuing Bank shall be entitled to honor any drafts and accept any documents presented to it by the proposed amendment beneficiary of such Letter of Credit in accordance with the terms of such Letter of Credit and believed by the Issuing Bank in good faith to such be genuine. The Issuing Bank shall not have any duty to inquire as to the accuracy or authenticity of any draft or other drawing documents which may be presented to it, but shall be responsible only to determine in accordance with customary commercial practices that the documents which are required to be presented before payment or acceptance of a draft under any Letter of Credit have been delivered and that they comply on their face with the requirements of that Letter of Credit.
(hf) The If the Issuing Bank shall make payment on any draft presented under a Letter of Credit Issuer (regardless of whether a Default or Event of Default or acceleration has occurred), the Issuing Bank shall act on behalf give notice of such payment to the Lenders and each Lender hereby authorizes and requests the Issuing Bank to advance for its account pursuant to the terms hereof its share of such payment based upon its participation in the Letter of Credit and agrees promptly to reimburse the Issuing Bank in immediately available funds for the Dollar equivalent of the amount so advanced on its behalf. If such reimbursement is not made by any Lender in immediately available funds on the same day on which the Issuing Bank shall have made payment on any such draft, such Lender shall pay interest thereof to the Issuing Bank at a rate per annum equal to the Issuing Bank’s cost of obtaining overnight funds in the New York Federal Funds Market. In the case of any draft presented under a Letter of Credit which is required to be paid at any time on or before the Revolving Commitment Termination Date, such payment of the unreimbursed draft shall constitute an Alternate Base Rate Loan hereunder and interest shall accrue from the date the Issuing Bank makes payment of a draft under the Letter of Credit.
(g) Subject to provisions of Section 2.16(e), the Borrower is absolutely, unconditionally and irrevocably obligated to reimburse all amounts drawn under each Letter of Credit. If any draft is presented under a Letter of Credit, payment of which is required to be made after the Revolving Commitment Termination Date or when there is insufficient availability under the Facility, then the Borrower will, upon demand by the Issuing Bank, pay to the Issuing Bank, in immediately available funds, the full amount of such draft (or in the case of insufficient availability, the amount of such deficiency) on the same Business Day if such notice is received prior to 12:00 noon, New York City Time, on such day or, if notice is received later than such time, on the immediately following Business Day. If such payment is not made by the Borrower and the Issuing Bank shall make payment on any draft presented under a Letter of Credit, the Issuing Bank shall give notice of such payment to the Lenders and each Lender hereby authorizes and requests the Issuing Bank to advance for its account pursuant to the terms thereof its share of such payment based upon its participation in the Letter of Credit Lenders and agrees promptly to reimburse the Issuing Bank in immediately available funds for the Dollar equivalent of the amount so advanced on its behalf. If such reimbursement is not made by any Lender in immediately available funds on the same day on which the Issuing Bank shall have made payment on any such draft, such Lender shall pay interest thereon to the Issuing Bank at a rate per annum equal to the Issuing Bank’s cost of obtaining overnight funds in the New York Federal Funds Market. Such payment shall constitute an Alternate Base Rate Loan hereunder and interest shall accrue from the date the Issuing Bank makes payment of a draft under the Letter of Credit at the rate specified in Section 2.5.
(i) The Borrower agrees to pay the following amount to the Issuing Bank with respect to any Letters of Credit issued by it and hereunder:
A. with respect to the documents associated therewith and the issuance, amendment, transfer or any other transaction related to each Letter of Credit Issuer shall have all and each drawing made thereunder, documentary and processing charges in accordance with the Issuing Bank’s standard schedule for such charges in effect at the time of such issuance, amendment, transfer or drawing, as the case may be; and
B. a fronting fee payable to the Issuing Bank with respect to each Letter of Credit for the period from and including the date of issuance of such Letter of Credit to but excluding the date of expiration of such Letter of Credit, computed at a rate equal to 0.125% per annum of the benefits L/C Exposure with respect to such Letter of Credit, such fee to be due and immunities payable in arrears on and through the last Business Day of each calendar quarter prior to the Revolving Credit Maturity Date and on the Revolving Credit Maturity Date, in each case for the actual number of days elapsed over a 360-day year.
(Aii) provided The Borrower agrees to pay to the Administrative Agent for distribution to each Lender in respect of its L/C Exposure, such Lender’s Pro Rata Share of a commission calculated at a rate per annum equal to the Applicable Margin for LIBOR Loans under the Revolving Credit Facility (calculated in the same manner as interest) of the undrawn portion of the L/C Exposure. Such commission shall be payable in arrears on and through the last Business Day of each calendar quarter prior to the Revolving Credit Maturity Date and on the Revolving Credit Maturity Date, in each case for the actual number of days elapsed over a 360-day year.
(iii) Promptly upon receipt by the Issuing Bank or the Administrative Agent, as applicable, of any amount described in clause (ii) of this Section 2.16(h), or any amount described in Section 13 with respect 2.16(g) previously reimbursed to any acts taken or omissions suffered the Issuing Bank by the Lenders, the Issuing Bank shall distribute to each Lender its Pro Rata Share of such amount. Amounts payable under clauses (i)(A) and (i)(B) of this Section 2.16(h) shall be paid directly to the Issuing Bank and shall be for its exclusive use.
(i) If at any time when an Event of Default shall have occurred and be continuing, any Letters of Credit shall remain outstanding, then the Required Lenders or the Issuing Bank may, at their or its option, require the Borrower to deliver to the Issuing Bank cash or Cash Equivalents in an amount equal to the full amount of the L/C Exposure or to furnish other security acceptable to the Issuing Bank. Any amounts so delivered pursuant to the preceding sentence shall be applied to reimburse the Issuing Bank for the amount of any drawings honored under Letters of Credit; provided, however, that if no Default or Event of Default is then continuing at the time of any such delivery of Cash Equivalents or any such furnishing of other security, the Issuing Bank shall return all of such collateral relating to such deposit to the Borrower upon request.
(j) If at any time that any Letter of Credit Issuer is outstanding, the sum of the L/C Exposure, plus the principal amount of all Loans outstanding exceeds the Borrowing Base, then the Required Lenders or the Issuing Bank may, at their or its option, require a prepayment of the Loans in connection accordance with Section 2.10(e) in an amount sufficient to eliminate such excess or to furnish other security for such excess acceptable to the Issuing Bank. Any amounts so delivered pursuant to the preceding sentence shall be applied to reimburse the Issuing Bank for the amount of any drawings honored under Letters of Credit issued Credit; provided, however, that if subsequent to any such deposit such excess is reduced to an amount less than the amount of such deposited amounts and no Default or Event of Default is then continuing, the Borrower shall be entitled to receive such excess collateral if requested by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuerit.
Appears in 1 contract
Samples: Credit, Security, Guaranty and Pledge Agreement (RHI Entertainment, Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Original Closing Interim Facility Effective Date and prior to during the L/C Maturity DateAvailability Period, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit New Money Lenders set forth in this Section 3Article, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, of the Borrower and for the direct or indirect benefit of, of the Borrower and the Restricted SubsidiariesDebtors, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form and with such Issuer Documents as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that but the Borrower shall be a co-applicantapplicant of, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted SubsidiaryGuarantor. The Existing Letters of Credit shall be deemed to have been issued pursuant hereto (but shall not be considered newly issued on the Interim Facility Effective Date for purposes of Section 4.1(d)), and from and after the Interim Facility Effective Date shall be subject to and governed by the terms and conditions hereof.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, (A) when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; effect and/or (B) when added to the Letters of Credit issued by and outstanding at such time for any Letter of Credit Issuer, would exceed the Letter of Credit Issuance Limit for such Letter of Credit Issuer, (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures Total Exposure at the such time of the issuance thereof to exceed the Total Revolving Credit Commitment applicable Loan Limit then in effect; , (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereofL/C Maturity Date, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer; but any Letter of Credit may provide for automatic renewal thereof to a date no later than the L/C Maturity Date or such longer period of time as may be agreed by the applicable Letter of Credit Issuer; provided, provided further, that in no event shall such expiration date occur later than the L/C Maturity Date unless arrangements, which are reasonably satisfactory to the Letter of Credit Issuer to Cash Collateralize (or backstop, convert, or roll-over) such Letter of Credit, have been made (but no Lender shall be obligated to fund participations in respect of any Letter of Credit after the L/C Maturity Date; ), (viv) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; Dollars, (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law Requirement of Law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; , (vi) no Letter of Credit shall be issued by a Letter of Credit Issuer (but another Letter of Credit Issuer, not subject to the constraints of this Section 3.1(b)(vi), may issue such Letter of Credit) if (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Letter of Credit Issuer from issuing the Letter of Credit, or any Law applicable to such Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuer shall prohibit, or request that such Letter of Credit Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such Letter of Credit Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Interim Facility Effective Date, or shall impose upon such Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Interim Facility Effective Date and which such Letter of Credit Issuer in good xxxxx xxxxx material to it or (B) the issuance of the Letter of Credit would violate one or more policies of such Letter of Credit Issuer generally, and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party Debtor or the Administrative Agent or the Required Revolving Credit Majority Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice (A) of (x) rescission of such notice from the party or parties originally delivering such notice or notice, (yB) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.113.1 or (C) that such Default or Event of Default is no longer continuing.
(c) Upon at least one (1) Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that; but, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (ai) Subject to and upon Upon the terms and subject to the conditions herein set forthhereof and of Applicable Law, at any time the Issuing Bank agrees, upon the request of the Borrower, to issue Letters of Credit (and to extend Letters of Credit previously issued hereunder) payable in Dollars from time to time after the Original Closing Date and prior to the Revolving Credit Commitment Termination Date, provided, however, that (A) the Borrower shall not request, and the Issuing Bank shall not issue, any Letter of Credit if, after giving effect thereto, the sum of the then current L/C Maturity DateExposure, plus the Letter aggregate principal amount of Credit Issuer agrees, in reliance upon the agreements of the all Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, Loans then outstanding would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate current amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; , (iiiB) no the Borrower shall not request, and the Issuing Bank shall not issue, any Letter of Credit having an expiration date (x) later than the tenth day prior to the Revolving Credit Commitment Termination Date or (y) more than one year after its date of issuance or extension, and (C) the Borrower shall not request, and the Issuing Bank shall not issue, any Letter of Credit if, after giving effect thereto, the then current L/C Exposure with respect to Letters of Credit would exceed $15,000,000.
(ii) Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from the Issuing Bank a participation in such Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; accordance with such Revolving Credit Lender's Revolving Credit Percentage.
(iviii) each Each Letter of Credit may, at the option of the Issuing Bank, provide that the Issuing Bank may (but shall have not be required to) pay all or any part of the maximum amount which may at any time be available for drawing thereunder to the beneficiary thereof upon the occurrence or continuation of an expiration date occurring no later than one year after the date Event of issuance thereof, unless otherwise agreed upon by the Administrative Agent Default and the Letter acceleration of Credit Issuerthe maturity of the Loans, provided that that, if payment is not then due to the beneficiary, the Issuing Bank shall deposit the funds in no event shall such expiration date occur later than question in a segregated account with the L/C Maturity Date; (v) each Letter of Credit Issuing Bank to secure payment to the beneficiary and any funds so deposited shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for paid to the beneficiary of the Letter of Credit if conditions to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party such payment are satisfied or returned to the Administrative Agent or Issuing Bank for distribution to the Required Revolving Credit Lenders stating that a Default or Event of Default (or, if all Obligations shall have been indefeasibly paid in full in cash, to the Borrower) if no payment to the beneficiary has occurred been made and is continuing until such time as the final date available for drawings under the Letter of Credit Issuer has passed. Each payment or deposit of funds by the Issuing Bank as provided in this paragraph shall have received be treated for all purposes of this Credit Agreement as a written notice drawing duly honored by such Issuing Bank under the related Letter of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1Credit.
(cb) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) Whenever the Borrower desires the issuance of a Letter of Credit, it shall deliver to the Administrative Agent and the Letter Issuing Bank a written notice no later than 1:00 p.m. (Eastern time) at least two (2) Business Days prior to the proposed date of Credit Issuer issuance (which or such lesser time as is acceptable to the Administrative Agent Issuing Bank). Such notice shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
specify (i) any orderthe proposed date of issuance (which shall be a Business Day), judgment or decree (ii) the face amount of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(iiiii) the issuance of such Letter of Credit would violate one or more policies expiration date of the Letter of Credit Issuer applicable to letters and (iv) the name and address of credit generally;
(iii) except as otherwise agreed the beneficiary. Such notice shall be accompanied by a brief description of the underlying transaction and upon request of the Issuing Bank or the Administrative Agent and Agent, the Letter Borrower shall provide additional details regarding the underlying transaction. Concurrently with the giving of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case written notice of a commercial request for the issuance of a Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of Borrower shall specify a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as precise description of the issuance date of such requested Letter of Credit issue letters of credit in documents and the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default verbatim text of any Revolving Credit Lender’s obligations certificate to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) presented by the beneficiary of such Letter of Credit does which, if presented by such beneficiary prior to the expiration date of the Letter of Credit, would require the Issuing Bank to make payment under the Letter of Credit; provided, however, that the Issuing Bank, in its reasonable discretion, may require customary changes in any such documents and certificates to be presented by the beneficiary. Any Letter of Credit shall be issued solely for one of the following purposes:
(1) to provide credit support for the Borrower's obligations under and pursuant to a Hedging Agreement in accordance with the terms of the applicable Hedging Agreement, (2) to provide credit support for indemnity obligations of a Credit Party or Subsidiary thereof in connection with the sale or lease of an asset permitted hereunder (provided that the applicable indemnity obligation is not prohibited by the terms of this Credit Agreement), (3) in connection with a Permitted Encumbrance or (4) for such other purpose as has been approved by the Agents and the Issuing Bank. Upon issuance of each Letter of Credit, the Issuing Bank shall notify the Administrative Agent of the issuance of such Letter of Credit. Promptly after receipt of such notice, the Administrative Agent shall notify each Revolving Credit Lender of the issuance and the amount of such Revolving Credit Lender's respective participation in the applicable Letter of Credit.
(c) Each Letter of Credit shall be subject to (i) the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 500, or any successor publication, as adopted or amended from time to time (the "Uniform Customs") and (ii) as to matters not addressed by the Uniform Customs, the law of the State of New York (or, if the Issuing Bank so elects, the law of the jurisdiction in which the office from which it issues its Letters of Credit is located). The Issuing Bank shall be entitled to honor any drafts and accept any documents presented to it by the proposed amendment beneficiary of such Letter of Credit in accordance with the terms of such Letter of Credit and believed by the Issuing Bank in good faith to be genuine. The Issuing Bank shall not have any duty to inquire as to the accuracy or authenticity of any draft or other drawing documents which may be presented to it, but shall be responsible only to determine in accordance with customary commercial practices that the documents which are required to be presented before payment or acceptance of a draft under any Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit.
(hd) The If the Issuing Bank shall make payment on any draft presented under a Letter of Credit Issuer (regardless of whether a Default, Event of Default or acceleration has occurred), the Issuing Bank shall act on behalf give notice of such payment to the Administrative Agent and the Revolving Credit Lenders Lenders, and each Revolving Credit Lender hereby authorizes and requests the Issuing Bank to advance for its account, pursuant to the terms hereof, its share of such payment based upon its participation in the Letter of Credit and agrees promptly to reimburse the Issuing Bank in immediately available funds in Dollars for the amount so advanced on its behalf by the Issuing Bank. If any such reimbursement is not made by any Revolving Credit Lender in immediately available funds on the same day on which the Issuing Bank shall have made payment on any such draft, such Revolving Credit Lender shall pay interest thereon to the Issuing Bank at a rate per annum equal to the Issuing Bank's cost of obtaining overnight funds in the Federal Funds market for the first three (3) days following the time when such Revolving Credit Lender fails to make the required reimbursement, and thereafter at a rate per annum equal to the Base Rate plus the Applicable Interest Margin for Base Rate Loans which are Revolving Credit Loans.
(e) The Borrower is absolutely, unconditionally and irrevocably obligated to reimburse all amounts drawn under each Letter of Credit. If any draft is presented under a Letter of Credit, the payment of which is required to be made at any time on or before the Revolving Credit Commitment Termination Date, then payment by the Issuing Bank of such draft shall constitute a Revolving Credit Loan (which is a Base Rate Loan) hereunder and interest shall accrue from the date the Issuing Bank makes payment on such draft under such Letter of Credit. If any draft is presented under a Letter of Credit, the payment of which is required to be made after the Revolving Credit Commitment Termination Date or at the time when an Event of Default or Default shall have occurred and then be continuing, then the Borrower shall immediately pay to the Issuing Bank, in immediately available funds, the full amount of such draft together with interest thereon at a rate per annum of 2% in excess of the rate then in effect for Revolving Credit Loans which are Base Rate Loans from the date on which the Issuing Bank makes such payment of such draft until the date it receives full reimbursement for such payment from the Borrower. The Borrower further agrees that the Issuing Bank may reimburse itself for such drawing from the balance in any other account of the Borrower maintained with the Issuing Bank.
(i) The Borrower agrees to pay the following amounts to the Issuing Bank with respect to any Letters of Credit issued by it and hereunder:
(A) with respect to the documents associated therewith and the issuance, amendment, transfer or other transaction related to a Letter of Credit Issuer shall have all and each drawing made thereunder, documentary and processing charges in accordance with the Issuing Bank's standard schedule for such charges in effect at the time of such issuance, amendment, transfer, drawing or other transaction, as the case may be; and
(B) a fronting fee payable directly to the Issuing Bank, for its sole account, for the period from and including the Closing Date to, but excluding, the Revolving Credit Commitment Termination Date computed at a rate equal to one-quarter of one percent (1/4 of 1%) per annum of the benefits daily average L/C Exposure (calculated in the same manner as interest on a Eurodollar Loan), such fee to be due and immunities payable in arrears on and through the last Business Day of each month in each year (Acommencing on the last Business Day of February, 2000) provided prior to the Revolving Credit Commitment Termination Date or the expiration of the last outstanding Letter of Credit (whichever is later) and on the later of the Revolving Credit Commitment Termination Date and the expiration of the last outstanding Letter of Credit.
(ii) The Borrower agrees to pay to the Administrative Agent for distribution to each Revolving Credit Lender in Section 13 with respect of its L/C Exposure, such Revolving Credit Lender's pro rata share (based on its Revolving Credit Commitment) of a commission equal to any acts taken (A) a per annum percentage rate equal to the Applicable Interest Margin for Revolving Credit Loans which are Eurodollar Loans multiplied by (B) the average daily amount of the L/C Exposure. Such commission shall be calculated in the same manner as interest on a Eurodollar Loan and shall be due and payable in arrears on and through the last Business Day of each month (commencing the last Business Day of February, 2000) prior to the Revolving Credit Commitment Termination Date or omissions suffered by the expiration of the last outstanding Letter of Credit Issuer in connection with Letters (whichever is later) and on the later of the Revolving Credit issued by it or proposed to be issued by it Commitment Termination Date and Issuer Documents pertaining to such Letters the expiration of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.last outstanding
Appears in 1 contract
Samples: Credit Agreement (Ventas Inc)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Original Closing Date and prior to the earlier of (i) the L/C Facility Maturity Date and (ii) the Revolving Credit Termination Date, the each Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, account of the Borrower (or, so long as the Borrower is the primary obligor, for the account of Holdings or any Subsidiary) trade and the Restricted Subsidiaries, a letter of credit or letters of credit (the “standby Letters of Credit” and each, a “Letter of Credit”) Credit in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no unless otherwise agreed to by the Letter of Credit in an Alternative Currency shall be issued Issuer and the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) Administrative Agent, each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereofthereof (except as set forth in Section 3.2(d)); provided, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerin each case, provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, the Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized, the applicable Revolving Lenders; (viv) each the Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: First Lien Credit Agreement (Aveanna Healthcare Holdings, Inc.)
Letters of Credit. (a) Borrower may request the L/C Issuer to issue letters of credit during the period from the Effective Date to the thirtieth Business Day prior to the Tranche A Maturity Date, provided that immediately after the issuance of each Letter of Credit (i) the Letter of Credit Exposure of all Tranche A Lenders would not exceed the Letter of Credit Sublimit, (ii) the aggregate Tranche A Credit Exposure of all Tranche A Lenders would not exceed the aggregate Tranche A Commitments of all Tranche A Lenders and (iii) the aggregate Revolving Credit Exposure of all Lenders would not exceed the aggregate Commitments of all Lenders. To request the issuance of a Letter of Credit, Borrower shall notify the Administrative Agent and the L/C Issuer by the delivery of a Credit Request in the form of Exhibit G, which shall be sent by facsimile and shall be irrevocable (confirmed promptly, and in any event within five Business Days, by the delivery to the Administrative Agent of a Credit Request manually signed by Borrower), at least three Business Days prior to the requested date of issuance, specifying (x) in the case of a Standby Letter of Credit, (A) to the extent not previously delivered to the Administrative Agent, copies of all agreements between Borrower and the beneficiary of such Standby Letter of Credit pertaining to the issuance of such Standby Letter of Credit and (B) a copy of the form of a Standby Letter of Credit which is attached hereto as Exhibit D, and (y) in the case of a Documentary Letter of Credit, a copy of the form of the application for a documentary letter of credit which is attached hereto as Exhibit E and which may be amended by the L/C Issuer from time to time, and in the case of each Letter of Credit, to the extent not included in the foregoing: (I) the beneficiary of such Letter of Credit, (II) Borrower’s proposal as to the conditions under which a drawing may be made under such Letter of Credit and the documentation to be required in respect thereof, (III) the maximum amount to be available under such Letter of Credit, (IV) the currency such Letter of Credit shall be denominated in (which shall be Dollars or an Alternative Currency then made available by the Administrative Agent and the L/C Issuer) and (V) the requested dates of issuance and expiration. Such Credit Request shall be accompanied by such other certificates, documents (including a reimbursement agreement) and other information as may be required by the L/C Issuer in accordance with its customary procedures (all of the instruments documents, certificate, applications and information described in the immediately preceding two sentences, collectively, the “Letter of Credit Documentation”). Upon receipt of such Credit Request from Borrower, the Administrative Agent shall promptly notify each Tranche A Lender thereof. Subject to and upon the satisfaction of the terms and conditions herein set forthof this Agreement, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, Issuer shall issue each requested Letter of Credit. In the event of any conflict between the provisions of this Agreement and any Letter of Credit Issuer agreesDocumentation, in reliance upon the agreements provisions of this Agreement shall control. Each of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from Parties hereby acknowledges and agrees that the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower Existing Letters of Credit are Letters of Credit hereunder and the Restricted Subsidiaries, a letter Tranche A Lenders hereby assume and are jointly and severally obligated with respect to all Reimbursement Obligations related thereto. Each of credit or letters of credit (the “Existing Letters of Credit” and each, Credit shall be deemed to be a “Letter of Credit”) in such form as may be approved by ” for all purposes of this Agreement and the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiaryother Loan Documents.
(b) Notwithstanding the foregoing, (i) no Each Letter of Credit shall be issued for the Stated Amount account of whichBorrower and in support of obligations, when added to contingent or otherwise, of Borrower or any Subsidiary arising in the Letters ordinary course of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no business. Each Documentary Letter of Credit shall be issued the Stated Amount expire no later than 180 days from its date of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no issuance. Each Standby Letter of Credit in shall either (A) have an Alternative Currency expiration date which shall be issued not later than the Stated Amount earlier of which would cause (x) 364 days after the Aggregate Multicurrency Exposures at the time date of the issuance thereof to exceed or (y) fifteen (15) Business Days before the Multicurrency Sublimit then in effect; Tranche A Maturity Date or (ivB) each contain “evergreen” provisions under which the such Standby Letter of Credit shall have an initial expiration date of not more than one year from issuance, which expiration date shall be deemed extended on an annual basis for successive periods of not more than one year unless notice of termination is given by the L/C Issuer, provided, however, no such Standby Letter of Credit shall have an expiration date occurring no later than one year after extending or be so extendable beyond the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Tranche A Maturity Date; (v) each . Any renewal, or any extension of any expiry date, of a Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) constitute the issuance of such Letter of Credit would violate one or more policies for all purposes of the this Agreement. In no event shall any Letter of Credit Issuer applicable expire later than fifteen (15) Business Days prior to letters of credit generally;the Tranche A Maturity Date.
(iiic) except as otherwise agreed by Immediately upon the issuance of a Letter of Credit, the L/C Issuer shall be deemed to have sold and transferred to each Tranche A Lender, and each Tranche A Lender shall be deemed to have irrevocably and unconditionally purchased and received from the L/C Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Tranche A Lender’s Tranche A Applicable Percentage thereof, in such Letter of Credit and the obligations of Borrower with respect thereto and any security therefor and any guaranty pertaining thereto at any time existing. Each Tranche A Lender, with respect to each Existing Letter of Credit, hereby purchases, without recourse or warranty, an undivided interest and participation, to the extent of such Tranche A Lender’s Tranche A Applicable Percentage thereof, in each such Existing Letter of Credit and the obligations of Borrower with respect thereto and any such security therefor and guaranty pertaining thereto at any time existing.
(d) The L/C Issuer shall promptly notify (i) each Tranche A Lender of the L/C Issuer’s receipt of a drawing request under any Letter of Credit, stating the amount of such Tranche A Lender’s Tranche A Applicable Percentage of such drawing request and the date on which such request will be honored (the “Honor Date”) and (ii) the Administrative Agent and Borrower of the amount of such drawing request and the Honor Date. Any failure of the L/C Issuer to give or any delay in the L/C Issuer’s giving any such notice shall not release or diminish the obligations of Borrower or any Tranche A Lender hereunder. In determining whether to pay under any Letter of Credit IssuerCredit, the L/C Issuer shall have no obligation to any Tranche A Lender or Borrower other than to confirm that any documents required to be delivered under such Letter of Credit is have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. In the absence of gross negligence or willful misconduct on the part of the L/C Issuer, the L/C Issuer shall have no liability to any Tranche A Lender or Borrower for any action taken or omitted to be taken by it under or in connection with any Letter of Credit, including any such action negligently taken or negligently omitted to be taken by it.
(e) Not later than 11:00 a.m., New York City time, on the Honor Date with respect to any drawing under any Letter of Credit, Borrower shall reimburse the L/C Issuer through the Administrative Agent in an initial Stated amount equal to the amount of such drawing and in the applicable currency. If Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Tranche A Lender of such failure, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and such Tranche A Lender’s Tranche A Applicable Percentage thereof. In the case of any Letter of Credit denominated in an Alternative Currency, the Unreimbursed Amount less than $100,000 shall be redenominated into Dollars and equal the Dollar Equivalent thereof, and the Administrative Agent shall so notify the Tranche A Lenders in the notice described in the preceding sentence. In such event, Borrower shall be deemed to have requested a Base Rate Loan to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount (or the Dollar Equivalent thereof, if applicable), without regard to the Minimum Loan Amount for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the aggregate Tranche A Commitments of the Tranche A Lenders and the conditions set forth in Section 5.02 (other than the case delivery of a commercial Letter of Credit, or $10,000 Loan Request). Any notice given by the L/C Issuer or the Dollar Equivalent thereofAdministrative Agent pursuant to this Section may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice. Each Tranche A Lender shall promptly and unconditionally pay to the Administrative Agent, in for the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as account of the issuance date L/C Issuer, the amount of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Tranche A Lender’s obligations Tranche A Applicable Percentage of such Unreimbursed Amount in Dollars in immediately available funds on the Business Day the L/C Issuer so notifies such Tranche A Lender if such notice is given prior to fund under Section 3.3 exists or any Revolving Credit 12:00 Noon or, if such notice is given after 12:00 Noon, such Tranche A Lender is at shall make its Applicable Percentage of such time a Defaulting Lender hereunder, unless, in each case, Unreimbursed Amount available to the Letter of Credit L/C Issuer has entered into satisfactory arrangements with prior to 12:00 Noon on the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lendernext succeeding Business Day.
(f) The Letter of Credit Issuer If and to the extent any Tranche A Lender shall not amend make such Tranche A Lender’s Tranche A Applicable Percentage of any Letter Reimbursement Obligations available to the L/C Issuer when due in accordance with Section 2.14(e), such Tranche A Lender shall pay interest to the L/C Issuer on such unpaid amount for each day from the date such payment is due until the date such amount is paid in full to the L/C Issuer at the Federal Funds Effective Rate until (and including) the third Business Day after the date due and thereafter at the Base Rate. The obligations of Credit if the Letter Tranche A Lenders under this Section 2.14(f) are several and not joint or joint and several, and the failure of Credit any Tranche A Lender to make available to the L/C Issuer would its Tranche A Applicable Percentage of any Reimbursement Obligations when due in accordance with Section 2.14(e) shall not relieve any other Tranche A Lender of its obligation hereunder to make its Tranche A Applicable Percentage of such Reimbursement Obligations so available when so due, but no Tranche A Lender shall be permitted at responsible for the failure of any other Tranche A Lender to make such time to issue other Tranche A Lender’s Tranche A Applicable Percentage of such Letter of Credit in its amended form under the terms hereofReimbursement Obligations so available when so due.
(g) The Letter Whenever the L/C Issuer receives a payment of Credit a Reimbursement Obligation from or on behalf of Borrower as to which the L/C Issuer has received any payment from a Tranche A Lender pursuant to Section 2.14(e), the L/C Issuer shall be under no obligation promptly pay to amend such Tranche A Lender an amount equal to such Tranche A Lender’s Tranche A Applicable Percentage of such payment from or on behalf of Borrower. If any payment by or on behalf of Borrower and received by the L/C Issuer with respect to any Letter of Credit if is rescinded or must otherwise be returned by the L/C Issuer for any reason and the L/C Issuer has paid to any Tranche A Lender any portion thereof, each such Tranche A Lender shall forthwith pay over to the L/C Issuer an amount equal to such Tranche A Lender’s Tranche A Applicable Percentage of the amount which must be so returned by the L/C/Issuer.
(Ah) Each Tranche A Lender, upon the demand of the L/C Issuer, shall reimburse the L/C Issuer, to the extent the L/C Issuer has not been reimbursed by Borrower after demand therefor, for the reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the L/C Issuer in connection with the collection of amounts due under, and the preservation and enforcement of any rights conferred by, any Letter of Credit or the performance of the L/C Issuer’s obligations as issuer of the Letters of Credit under this Agreement in respect thereof, to the extent of such Tranche A Lender’s Tranche A Applicable Percentage of the amount of such costs and expenses provided, however, that no Tranche A Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements to the extent the same result solely from the gross negligence or willful misconduct of the L/C Issuer. The L/C Issuer would shall refund any costs and expenses reimbursed by such Tranche A Lender that are subsequently recovered from Borrower in an amount equal to such Tranche A Lender’s Tranche A Applicable Percentage thereof.
(i) The obligation of Borrower to reimburse the L/C Issuer pursuant to this Section 2.14, and the obligation of each Tranche A Lender to make available to the L/C Issuer the amounts set forth in this Section 2.14 shall be absolute, unconditional and irrevocable under any and all circumstances, shall be made without reduction for any set-off, counterclaim or other deduction of any nature whatsoever, may not be terminated, suspended or delayed for any reason whatsoever, shall not be subject to any qualification or exception and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including any of the following circumstances: (1) any lack of validity or enforceability of this Agreement or any of the other Loan Documents, (2) the existence of any claim, setoff, defense or other right which Borrower may have no obligation at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such time to issue transferee may be acting), the L/C Issuer, any Lender or any other Person, whether in connection with this Agreement, any other Loan Document, any Letter of Credit, the transactions contemplated in the Loan Documents or any unrelated transactions (including any underlying transaction between Borrower and the beneficiary named in any such Letter of Credit in its amended form Credit), (3) any draft, certificate or any other document presented under the terms hereof, or (B) the beneficiary of such any Letter of Credit does proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, (4) the surrender or impairment of any collateral for the performance or observance of any of the terms of any of the Loan Documents, (5) the occurrence of any Default or Event of Default or (6) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, Borrower’s or such Tranche A Lender’s obligations hereunder. The L/C Issuer shall not 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 any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the L/C Issuer. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the L/C Issuer (as finally determined by a court of competent jurisdiction), the L/C Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the 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 proposed amendment 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.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Loan and Security Agreement (K-Sea Transportation Partners Lp)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct account of the Borrowers (or, so long as the Borrowers are the primary obligor, for the account of Holdings or indirect benefit of, any Restricted Subsidiary (other than the Borrower and the Restricted Subsidiaries, a letter of credit or Borrowers)) letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effecteffect (or with respect to any Letter of Credit Issuer, exceed such Letter of Credit Issuer’s Letter of Credit Commitment); (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerthereof (except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, the Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized or backstopped (in the case of a backstop only, on terms reasonably satisfactory to such Letter of Credit Issuer), the Revolving Credit Lenders; (viv) each the Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Credit Agreement (GoDaddy Inc.)
Letters of Credit. (a) Subject to and upon all the terms and conditions herein set forthhereof, 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 any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, Borrower's request Xxxxxx may in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to its discretion issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (an "L/C" and collectively the “Letters "L/Cs") for the account of the Borrower subject to availability under the Revolving Credit” , and each, a “Letter the Banks hereby agree to participate therein as more fully described in Section 1.7 hereof. Each L/C shall be issued pursuant to an application for letter of Credit”credit (the "L/C Agreement") in such the form as may of Exhibit B hereto. The L/Cs shall consist of standby and commercial letters of credit in an aggregate face amount not to exceed $20,000,000. Each L/C shall have an expiry date not more than one year from the date of issuance thereof (but in no event later than the Termination Date). The amount available to be approved by drawn under each L/C issued pursuant hereto shall be deducted from the Letter credit otherwise available under the Revolving Credit. In consideration of Credit Issuer in its reasonable discretion; provided that the issuance of L/Cs the Borrower shall be agrees to pay Xxxxxx for the benefit of the Banks a cofee (the "L/C Participation Fee") in the amount per annum equal to one percent (1%) (computed on the basis of a 360-applicant, day year and jointly and severally liable with respect to, actual days elapsed) of the face amount for each Letter of Credit L/C issued for the account of the Borrower hereunder. In addition, the Borrower shall pay Xxxxxx (x) a Restricted Subsidiaryfee (the "L/C Issuance Fee") in the amount per annum equal to (i) for standby L/Cs, one-quarter of one percent (0.25%) of the stated amount of each standby L/C issued hereunder and (ii) for commercial L/Cs, the customary issuance fee for commercial L/Cs as may be established by Xxxxxx from time to time, and (y) such drawing, negotiation, amendment and other administrative fees in connection with each L/C as may be established by Xxxxxx from time to time (the "L/C Administrative Fee"). All L/C Issuance Fees and L/C Participation Fees shall be payable quarterly in arrears on the last day of each March, June, September and December commencing December 31, 2002 and on the Termination Date, and all L/C Administrative Fees shall be payable on the date of issuance of each L/C hereunder and on the date required by Xxxxxx.
(b) Notwithstanding anything contained in any L/C Agreement to the foregoing, contrary: (i) no Letter of Credit the Borrower shall be issued the Stated Amount of whichpay fees in connection with each L/C as set forth in Section 1.4(a) hereof, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (fexcept as otherwise provided in Section 3.4(b) belowhereof and Section 3.6(b) hereof, no Letter before the occurrence of Credit shall be a Potential Default or an Event of Default, Xxxxxx will not call for the funding by the Borrower of any amount under an L/C issued for the Stated Amount Borrower's account, or for any other form of which would cause collateral security for the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then Borrower's obligations in effect; connection with such L/C, before being presented with a drawing thereunder, and (iii) no Letter if Xxxxxx is not timely reimbursed for the amount of Credit any drawing under an L/C on the date such drawing is paid, the Borrower's obligation to reimburse Xxxxxx for the amount of such drawing shall bear interest as specified in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (ivSection 1.3(b) each Letter of Credit shall have hereof. If Xxxxxx issues any L/C with an expiration date occurring no later that is automatically extended unless Xxxxxx gives written notice that the expiration date will not so extend beyond its then scheduled expiration date, Xxxxxx will give such written notice of non-renewal before the time necessary to prevent such automatic extension if before such required notice date (i) the expiration date of such L/C if so extended would be more than one year from the then scheduled expiration date of such L/C or after the Termination Date, (ii) the Revolving Credit Commitments have been terminated, or (iii) an Event of Default exists and the Required Banks have given Xxxxxx instructions not to so permit the extension of the expiration date of issuance thereof, unless otherwise agreed upon by the such L/C.
(c) The Administrative Agent and shall give prompt telephone, telex, or telecopy notice to each Bank of each issuance of, or amendment to, an L/C specifying the Letter effective date of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) or amendment, the amount, the beneficiary, and the expiration date of the L/C, in each Letter of Credit shall be denominated in Dollars case as established originally or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law through the relevant amendment, as applicable, the account party or parties for the beneficiary of the Letter of Credit to have a Letter of Credit issued L/C, each Bank's pro rata participation in its favor; such L/C and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or whether the Administrative Agent or has classified the Required Revolving Credit Lenders stating that L/C as a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders)commercial, the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Creditperformance, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters financial letter of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lenderregulatory reporting purposes.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Parent Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Parent Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit Credit, other than the UK Pension Letter of Credit, shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that that, except in the case of the UK Pension Letter of Credit, in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders any Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.114.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Parent Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved]The parties hereto agree that the Existing Letters of Credit shall be deemed to be Letters of Credit for all purposes under this Agreement, without any further action by the Parent Borrower, the Letter of Credit Issuer or any other Person.
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx fxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereofof $100,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Parent Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Credit Agreement (Hca Inc/Tn)
Letters of Credit. (a) Subject to and upon Upon the terms and subject to the conditions herein set forth, the Borrower may request a Fronting Bank, at any time and from time to time after the Original Closing Date date hereof and prior to the L/C Maturity Termination Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request ofissue, and for subject to the direct or indirect benefit ofterms and conditions contained herein, the Borrower and the Restricted Subsidiariessuch Fronting Bank shall issue, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Borrower one or more Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit IssuerCredit, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for after giving effect to such issuance (i) the beneficiary of the aggregate Letter of Credit to have a Outstandings shall exceed $120,000,000 or (ii) the aggregate Letter of Credit issued in its favor; and (vii) Outstandings, when added to the aggregate outstanding principal amount of the Loans, would exceed the Total Commitment and, provided further that no Letter of Credit shall be issued by a Letter of Credit Issuer after it has if the Fronting Bank shall have received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating Banks that a Default or Event of Default has occurred and is continuing until the conditions to such time as the issuance have not been met.
(b) No Letter of Credit Issuer shall have received a written notice expire later than the earlier of (x) rescission twelve months from the date of issuance of such notice from the party or parties originally delivering such notice or Letter of Credit and (y) 60 days after the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Maturity Date, provided that if any Letter of Credit Issuer (which shall be outstanding on the Administrative Agent shall promptly notify the applicable Lenders)Termination Date, the Borrower shall have shall, at or prior to the rightTermination Date, on any dayexcept as the Agent may otherwise agree in writing, permanently to terminate or reduce the Letter (i) cause all Letters of Credit Commitment which expire after the Termination Date to be returned to the Fronting Bank undrawn and marked "cancelled" or (ii) if the Borrower is unable to do so in whole or in part, provided that, after giving effect either (x) provide a "back-to-back" letter of credit to one or more Fronting Banks in a form reasonably satisfactory to such Fronting Bank and the Agent, issued by a bank satisfactory to such Fronting Bank and the Agent, in an amount equal to 105% of the then undrawn stated amount of all outstanding Letters of Credit issued by such Fronting Banks and/or (y) deposit cash in the Letter of Credit Account in an amount equal to 105% of the then undrawn stated amount of all outstanding Letters of Credit as collateral security for the Borrower's reimbursement obligations in connection therewith, such cash to be remitted to the Borrower upon the expiration, cancellation or other termination or reductionsatisfaction of such reimbursement obligations.
(c) The Borrower shall pay to each Fronting Bank, in addition to such other fees and charges as are specifically provided for in Section 2.20 hereof, such fees and charges in connection with the issuance and processing of the Letters of Credit Outstanding shall not exceed the Letter issued by such Fronting Bank as are customarily imposed by such Fronting Bank from time to time in connection with letter of Credit Commitmentcredit transactions.
(d) [Reserved]Drafts drawn under each Letter of Credit shall be reimbursed by the Borrower in Dollars not later than the first Business Day following the date of draw and shall bear interest from the date of draw until the first Business Day following the date of draw at a rate per annum equal to the Alternate Base Rate plus 1-1/2% and thereafter until reimbursed in full at a rate per annum equal to the Alternate Base Rate plus 3-1/2% (computed on the basis of the actual number of days elapsed over any year of 360 days). The Borrower shall effect such reimbursement (x) if such draw occurs prior to the Termination Date (or the earlier date of termination of the Total Commitment), in cash or through a Borrowing without the satisfaction of the conditions precedent set forth in Section 4.2 or (y) if such draw occurs on or after the Termination Date (or the earlier date of termination of the Total Commitment), in cash. Each Bank agrees to make the Loans described in clause (x) of the preceding sentence notwithstanding a failure to satisfy the applicable lending conditions thereto or the provisions of Section 2.1 or the occurrence of the Termination Date.
(e) The Letter Immediately upon the issuance of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) by any orderFronting Bank, judgment such Fronting Bank shall be deemed to have sold to each Bank other than such Fronting Bank and each such other Bank shall be deemed unconditionally and irrevocably to have purchased from such Fronting Bank, without recourse or decree warranty, an undivided interest and participation, to the extent of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Bank's Commitment Percentage, in such Letter of Credit, or each drawing thereunder and the obligations of the Borrower and the Guarantors under this Agreement with respect thereto. Upon any law applicable change in the Commitments pursuant to the Section 10.3, it is hereby agreed that with respect to all Letter of Credit Issuer or any request or directive (whether or not having Outstandings, there shall be an automatic adjustment to the force of law) from any Governmental Authority with jurisdiction over participations hereby created to reflect the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies new Commitment Percentages of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed assigning and assignee Banks. Any action taken or omitted by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is a Fronting Bank under or in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of connection with a commercial Letter of Credit, if taken or $10,000 or the Dollar Equivalent thereof, omitted in the case absence of a standby Letter of Credit;
(iv) gross negligence or willful misconduct, shall not create for such Letter of Credit is denominated in a currency Fronting Bank any resulting liability to any other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderBank.
(f) The Letter of Credit Issuer shall not amend In the event that a Fronting Bank makes any payment under any Letter of Credit if and the Letter Borrower shall not have reimbursed such amount in full to such Fronting Bank pursuant to this Section, the Fronting Bank shall promptly notify the Agent, which shall promptly notify each Bank of Credit Issuer would such failure, and each Bank shall promptly and unconditionally pay to the Agent for the account of the Fronting Bank the amount of such Bank's Commitment Percentage of such unreimbursed payment in Dollars and in same day funds. If the Fronting Bank so notifies the Agent, and the Agent so notifies the Banks prior to 11:00 a.m. (New York City time) on any Business Day, such Banks shall make available to the Fronting Bank such Bank's Commitment Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Bank shall not be permitted have so made its Commitment Percentage of the amount of such payment available to the Fronting Bank, such Bank agrees to pay to such Fronting Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Agent for the account of such Fronting Bank at such time the Federal Funds Effective Rate. The failure of any Bank to issue such Letter make available to the Fronting Bank its Commitment Percentage of Credit in its amended form any payment under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) shall not relieve any other Bank of its obligation hereunder to make available to the Fronting Bank its Commitment Percentage of any payment under any Letter of Credit Issuer would have on the date required, as specified above, but no obligation at such time Bank shall be responsible for the failure of any other Bank to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment make available to such Letter Fronting Bank such other Bank's Commitment Percentage of Credit.
(h) The Letter any such payment. Whenever a Fronting Bank receives a payment of Credit Issuer a reimbursement obligation as to which it has received any payments from the Banks pursuant to this paragraph, such Fronting Bank shall act on behalf of the Revolving Credit Lenders with respect pay to any Letters of Credit issued by it each Bank which has paid its Commitment Percentage thereof, in Dollars and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining same day funds, an amount equal to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit IssuerBank's Commitment Percentage thereof.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Flagstar Companies Inc)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct or indirect benefit of, the Holdings, any Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the a Borrower shall be a co-applicant, applicant and shall be jointly and severally liable with respect to, each Letter of Credit issued for the account of Holdings or a Restricted Subsidiary; provided, however, no Foreign Borrower shall be liable for a Letter of Credit unless such Foreign Borrower is the co-applicant of such Letter of Credit or such Letter of Credit is issued for the account of such Foreign Borrower or any of its Subsidiaries; provided further however, the German Borrower shall be liable for all Letters of Credit issued on account of Tranche B Revolving Credit Commitments and the UK Borrower shall be liable for all Letters of Credit issued on account of Tranche C Revolving Credit Commitments.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Euro or the Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerthereof (except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer; (viv) each Letter of Credit shall be denominated in Dollars Dollars, Euro or an Alternative Currency; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one two Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the each Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved]The parties hereto agree that the Existing Letters of Credit shall be deemed to be Letters of Credit for all purposes under this Agreement, without any further action by the Borrowers, the Letter of Credit Issuer or any other Person.
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) unless otherwise agreed by the Administrative Agent and the applicable Letter of Credit Issuer, such Letter of Credit is denominated in a currency other than Dollars Dollars, Euro or an Alternative Currency;
(v) unless otherwise agreed by the Administrative Agent and the applicable Letter of Credit Issuer, the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrowers have entered into arrangements satisfactory to the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
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Letters of Credit. (a) Subject to An Originator may request that the Purchase Price for Receivables sold on a Payment Date be paid by the Buyer procuring the issuance of a Letter of Credit by the LC Bank. Upon the request of an Originator, and upon on the terms and conditions herein set forth, at for issuing Letters of Credit under the Receivables Purchase Agreement (including any time and from time to time after limitations therein on the Original Closing Date and prior to the L/C Maturity Dateamount of any such issuance), the Letter Buyer agrees to cause the LC Bank to issue, on the Payment Dates specified by such Originator, Letters of Credit Issuer agrees, in reliance upon the agreements favor of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter beneficiaries specified by such Originator. The aggregate stated amount of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter being issued on any Payment Date on behalf of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit any Originator shall be issued the Stated Amount of which would cause constitute a credit against the aggregate Purchase Price payable by the Buyer to such Originator on such Payment Date pursuant to Section 3.2. To the extent that the aggregate stated amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding being issued on any Payment Date exceeds the aggregate Purchase Price payable by the Buyer to an Originator on such Payment Date, such excess shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation deemed to issue any Letter of Credit if:
be a (i) any orderreduction in the outstanding principal balance of (and, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain fromextent necessary, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon accrued but unpaid interest on) the Letter of Credit Issuer with respect Subordinated Note payable to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
Originator and/or (ii) a reduction in the issuance of such Letter of Credit would violate one or more policies of Purchase Price payable on the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by Payment Dates immediately following the Administrative Agent and the Letter of Credit Issuer, date any such Letter of Credit is in an initial Stated Amount less than $100,000 or issued. In the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) event that any such Letter of Credit issued pursuant to this Section 3.3 (i) expires or is denominated in cancelled or otherwise terminated with all or any portion of its stated amount undrawn, (ii) has its stated amount decreased (for a currency reason other than Dollars a drawing having been made thereunder) or an Alternative Currency;
(viii) the Letter Buyer’s Reimbursement Obligation in respect thereof is reduced for any reason other than by virtue of Credit Issuer a payment made in respect of a drawing thereunder, then an amount equal to such undrawn amount or such reduction, as the case may be, shall either be paid in cash to such Originator on the next Payment Date or, if the Buyer does not as then have cash available therefor, shall be deemed to be added to the outstanding principal balance of the issuance date of Subordinated Note issued to such requested Letter of Credit issue letters of credit Originator. Under no circumstances shall the Originator (or any Affiliate thereof (other than the Buyer)) have any reimbursement or recourse obligations in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default respect of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(hb) The In the event that any Originator requests that any purchases be paid for by the issuance of a Letter of Credit Issuer hereunder, such Originator shall act on behalf a timely basis provide the Buyer with such information as is necessary for the Buyer to obtain such Letter of Credit from the LC Bank, and shall notify the Buyer, the Servicer, and the Administrator of the Revolving Credit Lenders with respect allocations described in clause (a) above. Such allocations shall be binding on the Buyer and the Originator, absent manifest error. 701741768 12403015
(c) Each Originator agrees to any Letters be bound by the terms of each Letter of Credit issued by it Application referenced in the Receivables Purchase Agreement and the documents associated therewith and that the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided be subject either to the Administrative Agent in Section 13 with respect Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600, and any amendments or revisions thereof adhered to any acts taken or omissions suffered by the Letter LC Bank or the International Standby Practices (ISP98-International Chamber of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissionsCommerce Publication Number 590), and (B) any amendments or revisions thereof adhered to by the LC Bank, as additionally provided herein with respect determined by the LC Bank, in each case subject to the Letter of Credit Issuerterms and conditions set forth in the Receivables Purchase Agreement.
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Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Second Restatement Effective Date and prior to the L/C Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Second Restatement Effective Date through the L/C Facility Maturity Date upon the request of, and for the direct or indirect benefit of, account of the Borrower and (or, so long as the Borrower is the primary obligor, for the account of Holdings or any Restricted Subsidiaries, a letter of credit or Subsidiary (other than the Borrower)) letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each . Each Existing Letter of Credit shall be deemed to have been issued for under this Agreement by the account applicable Letter of a Restricted SubsidiaryCredit Issuer on the Second Restatement Effective Date.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effecteffect (or with respect to any Letter of Credit Issuer, exceed such Letter of Credit Issuer’s Letter of Credit Commitment); (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuerthereof (except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, the Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized or backstopped (in the case of a backstop only, on terms reasonably satisfactory to such Letter of Credit Issuer), the Revolving Credit Lenders; (viv) each the Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a the Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one two Business Day’s Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment (or with respect to a Letter of Credit Issuer, the Letters of Credit outstanding with respect to Letters of Credit issued by such Letter of Credit Issuer shall not exceed such Letter of Credit Issuer’s Letter of Credit Commitment).
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in each case, for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Second Restatement Effective Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Second Restatement Effective Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof50,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is denominated in a currency other than Dollars or an Alternative CurrencyDollars;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower have entered into arrangements reasonably satisfactory to the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderLender or such risk has been reallocated in accordance with Section 2.16.
(f) The Letter of Credit Issuer shall not amend increase the Stated Amount of any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
Samples: Second Joinder and Restatement Agreement (National Vision Holdings, Inc.)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the each Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request ofof the Parent Borrower, and for the direct or indirect benefit of, the Borrower Borrowers and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Parent Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted SubsidiarySubsidiary that is not a Borrower.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at such time to exceed the time lesser of the issuance thereof to exceed Borrowing Base and the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, ; provided that in no event shall such expiration date occur later than the L/C Maturity Date; (viv) each Letter of Credit shall be denominated in Dollars or an Alternative CurrencyDollars; (viv) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (viivi) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders any Lender stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.114.1; (vii) each commercial Letter of Credit shall be a sight letter of credit and (viii) unless otherwise agreed by such Letter of Credit Issuer in its sole discretion, no Letter of Credit Issuer shall be required to issue any Letter of Credit if the Stated Amount of such Letter of Credit, when added to the Letter of Credit Outstandings at such time in respect of Letters of Credit previously issued by such Letter of Credit Issuer, would exceed the amount of such Letter of Credit Issuer’s Letter of Credit Sublimit.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly notify transmit to each of the applicable Lenders), the Parent Borrower on behalf of the Borrowers shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, ; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof100,000, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative CurrencyDollars;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(viivi) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Parent Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith therewith, and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Appears in 1 contract
