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 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 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 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 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 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 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 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 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 Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp), 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 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. (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. (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 (Belport Capital Fund LLC), Loan and Security Agreement (Belair 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 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 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: Revolving Credit and Term Loan Agreement (Archaea Energy Inc.), Credit Agreement (Archaea Energy Inc.), Revolving Credit and Term Loan Agreement (Archaea Energy 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) 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, 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 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 (TB Wood's INC), Credit Agreement (Altra Industrial Motion, 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 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 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 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 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 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. (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: Revolving Credit Facility (Trigen Energy Corp), 364 Day Revolving Credit Facility (Trigen Energy Corp)
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 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 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 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 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, 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) 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 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. (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 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 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 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 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 (CMS Energy Corp), Credit Agreement (Consumers Energy Co)
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, 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 forthprovisions of this Agreement, F.Y.I. may utilize the Commitments by requesting that the Issuing Bank issue Letters of Credit; provided, that the aggregate amount of outstanding Letter of Credit Liabilities under the Commitments shall not at any time and from time to time after the Original Closing Date and prior exceed $25,000,000. Notwithstanding anything to the L/C Maturity Datecontrary contained in this Agreement, each of the Letter Existing 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 ofshall be deemed, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiariesshall be, 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 hereunder. Upon the account later of (i) the date of this Agreement or (ii) the date of issue of each Letter of Credit, the Issuing Bank 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 Bank, a Restricted Subsidiaryparticipation to the extent of such Lender's Commitment Percentage in such Letter of Credit.
(b) Notwithstanding F.Y.I. shall give the foregoing, Issuing Bank (iwith a copy to the Administrative Agent) no at least five Business Days irrevocable prior notice (effective upon receipt) specifying the date of each Letter of Credit shall and the nature of the transactions to be issued supported thereby. The Issuing Bank shall, on a quarterly basis, notify each applicable Lender of the Stated Amount contents of which, when added to all such notices received from F.Y.I. during such quarter and of such Lender's Commitment Percentage of the amount of all such Letters of Credit Outstanding at proposed during 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 quarter. Each Letter of Credit shall have an expiration date occurring no later than that does not exceed one year from the date of issuance (provided, however, that the B&B Letter of Credit may have an expiration date that is up to eighteen months after the date of issuance and the Existing B of A Letter of Credit may have an expiration date that extends to March 31, 2003) and that does not extend beyond the Maturity Date, shall be payable in Dollars, shall support a transaction entered into in the ordinary course of the account party's or parties' business, shall be satisfactory in form and substance to the Issuing Bank, and shall be issued pursuant to such agreements, documents and instruments (including a Letter of Credit Agreement) as the Issuing Bank may reasonably require, none of which shall be inconsistent with this Section 2.14. Each Letter of Credit shall (i) provide for the payment of drafts presented for, on or thereunder by the beneficiary in accordance with the terms thereof, unless otherwise agreed upon when such drafts are accompanied by the Administrative Agent and documents (if any) described in the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than and (ii) to the L/C Maturity Date; (v) each extent not inconsistent with the terms hereof or any applicable Letter of Credit shall Agreement, be denominated subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500 (together with any subsequent revision thereof approved by a Congress of the International Chamber of Commerce and adhered to by the Issuing Bank, the "UCP"), and shall, as to matters not governed by the UCP, be governed by, and construed and interpreted in Dollars or an Alternative Currency; accordance with, the laws of the State of Texas.
(vic) no Letter of Credit shall be issued if it would be illegal under any applicable law F.Y.I. agrees to pay to the Administrative Agent for the beneficiary account of each Lender, in arrears on each Quarterly Date beginning on June 30, 2001 and on the Letter Maturity Date, a nonrefundable letter of Credit credit fee with respect to have a each 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) an amount equal to the Administrative Agent and the Letter product 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 the Applicable Margin for Eurodollar Loans in effect on the date 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 fee due on the Original Closing Date, first Quarterly Date after issuance) 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 first day of the applicable quarter or other period beginning after the calendar quarter during which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one occurred (with respect to the fee due on each subsequent Quarterly Date or more policies on the Maturity Date), multiplied by (ii) the daily average face amount of the Letters of Credit in effect during the applicable period. The Administrative Agent agrees to pay to each Lender, promptly after receiving any payment of letter of credit fees referred to above in this subsection (c), such Lender's Commitment Percentage of such fees. F.Y.I. further agrees to pay to the Issuing Bank for its own account, on the date of issuance of such Letter of Credit and on each anniversary of such date of issuance (if such Letter of Credit then remains outstanding), an amount equal to 0.125% of the face amount of the Letter of Credit Issuer applicable being issued. In addition to letters the foregoing fees, F.Y.I. shall pay or reimburse the Issuing Bank for such normal and customary costs and expenses, including, without limitation, administrative, issuance, amendment, payment and negotiation charges, as are incurred or charged by the Issuing Bank in issuing, effecting payment under, amending or otherwise administering any Letter of credit generally;Credit.
(iiid) except as otherwise agreed by Upon receipt from the Administrative Agent and the beneficiary of any Letter of Credit Issuerof any demand for payment or other drawing under such Letter of Credit, the Issuing Bank shall promptly notify F.Y.I. and each applicable Lender as to the amount to be paid as a result of such demand or drawing and the respective payment date. If at any time the Issuing Bank shall make a payment to a beneficiary of a Letter of Credit pursuant to a drawing under such Letter of Credit, each Lender will pay to the Issuing Bank, immediately upon the Issuing Bank's demand at any time commencing after such payment until reimbursement therefor in full by F.Y.I., an amount equal to such Lender's Commitment Percentage of such payment, together with interest on such amount for each day from the date of such payment to the date of payment by such Lender of such amount at a rate of interest per annum equal to the Federal Funds Rate.
(e) F.Y.I. shall be irrevocably and unconditionally obligated to immediately reimburse the Issuing Bank for any amounts paid by the Issuing Bank upon any drawing under any Letter of Credit issued pursuant to the Commitments, without presentment, demand, protest or other formalities of any kind. The Issuing Bank will pay to each Lender such Lender's Commitment Percentage of all amounts received from or on behalf of F.Y.I. for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Letter of Credit, but only to the extent such Lender has made payment to the Issuing Bank in respect of such Letter of Credit is in an initial Stated Amount less than $100,000 or pursuant to subsection (d) above. Outstanding Reimbursement Obligations shall bear interest at 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) Default Rate and 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 Lenderinterest shall be payable on demand.
(f) The Letter Reimbursement Obligations of Credit Issuer F.Y.I. under this Agreement and the other Loan Documents shall not amend be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement and the other Loan Documents under all circumstances whatsoever, including, without limitation, the following circumstances.
(i) Any lack of validity or enforceability of any Letter of Credit if or any other Loan Document;
(ii) Any amendment or waiver of or any consent to departure from any Loan Document;
(iii) The existence of any claim, setoff, counterclaim, defense or other right which any Loan Party or other Person may have at any time against any beneficiary of any Letter of Credit, the Administrative Agent, the Issuing Bank, the Lenders or any other Person, whether, in connection with this Agreement or any other Loan Document or any unrelated transaction;
(iv) Any statement, draft or other document presented under any Letter of Credit Issuer would 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 failure of the Issuing Bank to discover such forgery, fraud, invalidity or insufficiency shall not be permitted at such time to issue have constituted gross negligence or willful misconduct by the Issuing Bank;
(v) Payment by the Issuing Bank under any Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit in its amended form under Credit, provided, that such payment shall not have constituted gross negligence or willful misconduct of the terms hereofIssuing Bank; and
(vi) Any other circumstance whatsoever, whether or not similar to any of the foregoing, provided that such other circumstance or event shall not have been the result of the gross negligence or willful misconduct of the Issuing Bank.
(g) The Letter F.Y.I. assumes all risks of Credit Issuer shall be under no obligation to amend the acts or omissions of any beneficiary of any Letter of Credit with respect to its use of such Letter of Credit. Neither the Administrative Agent, the Issuing Bank, the Lenders nor any of their respective officers or directors shall have any responsibility or liability to F.Y.I. or any other Person for: (i) the failure of any draft to bear any reference or adequate reference to any Letter of Credit, or the failure of any documents to accompany any draft at negotiation, or the failure of any Person to surrender or to take up any Letter of Credit or to send documents apart from drafts as required by the terms of any Letter of Credit, or the failure of any Person to note the amount of any instrument on any Letter of Credit, (ii) errors, omissions, interruptions or delays in transmission or delivery of any messages, (iii) in the absence of gross negligence or willful misconduct of the Issuing Bank, the validity, sufficiency or genuineness of any draft or other document, or any endorsement(s) thereon, even if any such draft, document or endorsement should in fact prove to be in any and all respects invalid, insufficient, fraudulent or forged or any statement therein is untrue or inaccurate in any respect, (iv) the payment by the Issuing Bank to the beneficiary of any Letter of Credit against presentation of any draft or other document that does not comply with the terms of the Letter of Credit, or (v) any other circumstance whatsoever in making or failing to make any payment under a Letter of Credit; provided, however, that, notwithstanding the foregoing, the account party or parties shall have a claim against the Issuing Bank, and the Issuing Bank shall be liable to the account party or parties, to the extent of any direct, but not indirect or consequential, damages suffered by the account party or parties which it or they prove in a final nonappealable judgment were caused by (A) the Issuing Bank's willful misconduct or gross negligence in determining whether documents presented under any Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under complied with the terms hereof, thereof or (B) the beneficiary Issuing Bank's willful failure to pay under any Letter of Credit after presentation to it of documents strictly complying with the terms and conditions of such Letter of Credit does not Credit. The Issuing Bank may accept the proposed amendment documents that appear on their face to such Letter be in order, without responsibility for further investigation, regardless 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 notice or information 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 Issuercontrary.
Appears in 1 contract
Samples: Credit Agreement (Fyi Inc)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, the Borrower may request the Letter of Credit Issuer to issue, at any time and from time to time on and after the Original Closing Effective Date and prior to the L/C Maturity Date, and subject to and upon the terms and conditions herein set forth, 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 oftime, 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”x) 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.the Borrower and for the benefit of any holder (or any trustee, agent or other similar representative for any such holders) of L/C Supportable Obligations of the Borrower or any of its Subsidiaries and, to the extent permitted by Section 2.01(b) and, subject to the issuance policies of the respective Letter of Credit Issuer, Affiliates (it being agreed that in no event shall the aggregate Letter of Credit Outstandings attributable to Letters of Credit issued in
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued 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 the Letter $50,000,000; provided that in no event shall more than $12,500,000 in aggregate Face Amount of Letters of Credit Commitment then in effect; outstanding at any time be issued to support obligations of Affiliates (who are not also Subsidiaries) of the Borrower, 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 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 the Administrative Agent and the although any 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 Business Day immediately preceding the 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 , on terms acceptable 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 and in no event shall any Letter of Credit have received a written notice of (x) rescission of such notice from an expiry date occurring later than the party or parties originally delivering such notice or (y) Business Day immediately preceding the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1Maturity Date.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to Notwithstanding the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders)foregoing, 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:
if at the time of such issuance (i) any order, judgment or decree of any Governmental Authority governmental authority or arbitrator shall purport 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 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) a Lender Default exists, unless 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 respective Letter of Credit Issuer has entered into arrangements satisfactory arrangements with to it and the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s 's risk with respect to such Revolving Credit Lender.
(f) The Letter the participation in Letters of Credit Issuer shall not amend of any Letter Defaulting Lender, including by cash collateralizing any such Defaulting Lender's Percentage 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 hereofOutstandings.
(gd) 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 In addition to any Letters of Credit issued by it pursuant to the preceding provisions of this Section 2.01, on the Initial Borrowing Date, the letters of credit described in Annex III shall be assumed as Letters of Credit hereunder and the documents associated therewith and the shall constitute Letter of Credit Issuer shall have all of Outstandings in accordance with the benefits provisions hereof, 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 shall be subject to the Letter following provisions of Credit Issuer.this Section 2 (other than Section 2.03) and the other provisions of
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 Effective 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 (ii) for the “Letters account of Credit” 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”) "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 Renewed 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; (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 the Borrower or any
1. Notwithstanding anything herein to the contrary, the issuance of Letters of Credit Party or for the Administrative Agent or account of the Required Borrower shall be deemed a utilization of the Renewed Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as Commitments allocated to 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 13.1Borrower.
(c) Upon at least one Business Day’s '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 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 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 Datehereof, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to Issuing Bank shall 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 Subsidiarythe Company.
(a) The Letter of Credit Commitment at any time shall be equal to the lesser of (x) $50,000,000 and (y) the difference between the Total Commitment less the aggregate outstanding principal amount of Loans on such date.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the The Letters of Credit Outstanding at such time, would exceed (A) shall have an aggregate Face Amount not in excess of the Letter of Credit Commitment Commitment, (B) may, at the sole option of the Issuing Bank, be renewable if so requested by the Company using the form for such request then in effect; general use by the Issuing Bank, and (iiC) 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 the earlier of (i) 365 days 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; thereof and (viiii) 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 five business days prior to 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 13.1Termination Date.
(c) Upon at least one Business Day’s prior written notice The Company shall, no later than 2:00 P.M. New York City time on the day three business days (or telephonic notice promptly confirmed such lesser period to which the Issuing Bank may agree in writing) to before the Administrative Agent and the date on which issuance of a Letter of Credit Issuer is desired, give the Agent written notice substantially in the form of Exhibit E (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 effective upon receipt) (a "Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, Notice") specifying the Letters of Credit Outstanding shall not exceed the date on which each Letter of Credit Commitmentis to be issued, the requested expiration date thereof and the stated amount thereof, and attaching a proposed form of such letter of credit accompanied by a completed form of application for issuance of a letter of credit, using such standard form as shall then be in general use by the Issuing Bank. Upon receipt of such notice, the Agent shall notify each Bank of the contents thereof.
(d) [Reserved]Upon the date of issuance of each Letter of Credit, the Issuing Bank shall be deemed, without further action by any party hereto, to have sold to each Bank, and each Bank hereby irrevocably agrees to purchase and each Bank shall be deemed, without further action by any party hereto, to have purchased from the Issuing Bank, an undivided and continuing participation in such Letter of Credit, in accordance with such Bank's Pro Rata Share.
(e) The Letter Upon receipt from the beneficiary 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 demand for payment under such Letter of Credit, or any law applicable the Issuing Bank shall promptly notify the Company as to the Letter of Credit Issuer amount paid 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 be paid as a result 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 demand 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 Lenderrespective payment date.
(f) The Letter Each Bank shall, upon request by the Issuing Bank, remit to the Issuing Bank, through the Agent, such Bank's share (as determined in accordance with Section 3.01(d) above) of Credit Issuer the payment made by the Issuing Bank together with interest thereon for each day from the day of demand through the day of payment at a rate equal to the Federal Funds Rate, changing as and when said rate shall not amend change, plus, for each day from the day three business days after such demand through the day of payment, two percent. If the Issuing Bank shall have made such request to any Letter of Credit if Bank prior to 1:00 P.M. New York City time on a Business Day, such payment shall be made by each Bank no later than 4:00 P.M. New York City time on such Business Day, otherwise such payment shall be made no later than 4:00 P.M. New York City time on 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 hereofnext Business Day.
(g) The Company shall, not later than 12:00 noon New York time on the date of payment of each drawing, reimburse the Issuing Bank, through the Agent, for any amounts paid by the Issuing Bank under any Letter of Credit Issuer Credit. The Issuing Bank shall be promptly remit to each Bank, through the Agent, such Bank's share (as determined in accordance with Section 3.01(d) above) of any payment received by the Issuing Bank to the extent that such Bank has reimbursed the Issuing Bank in accordance with clause (f) of this Section 3.
01. To the extent that the Company does not reimburse the Issuing Bank, by means of payment pursuant to this paragraph (g) or by means of Loans issued pursuant to paragraph (h) of this Section 3.01, for any payment by the Issuing Bank under no obligation to amend any Letter of Credit if on the date of such payment, such amounts not reimbursed shall accrue interest, payable on demand, at the rate per annum (Aon the basis of a 365-day year for the actual number of days involved) equal to the sum of (i) 2% per annum and (ii) the rate of interest then applicable to ABR Loans, changing as and when said rate shall change.
(h) The Company may request that the Banks make a Committed Loan in order to pay its Reimbursement Obligation in respect of any payment of each drawing under any Letter of Credit. To the extent that the Company has not otherwise paid such Reimbursement Obligation on the date of any such drawing, the Company shall be deemed to have given a timely notice of request for Loans to be made on such day as ABR Loans in an aggregate amount of such Reimbursement Obligation; such Loans, if made consistently with the provisions of this Agreement, shall be deemed to have been made on the date of such drawing. On the day that Loans are to be made in order to pay such Reimbursement Obligation, each Bank shall, subject to and in accordance with the terms and conditions of this Agreement (including satisfaction of the conditions set forth in Article VII hereof), make a Loan, the proceeds of which shall be applied to such Reimbursement Obligation; provided, however, that such Loan may be in amounts less than the minimum aggregate principal amount or in amounts other than in multiples of $100,000 in excess thereof as required by Section 2.02(a); and provided further that, with respect to such Loan, such Bank shall be required to make available to the Issuing Bank under Section 2.02(b) only an amount equal to the difference, if any, between the amount of such Loan and the amount remitted through the Agent to the Issuing Bank pursuant to Section 3.01(f). Nothing in this paragraph (h) shall limit each Bank's irrevocable obligations with respect to participations in each Letter of Credit Issuer would have no obligation at pursuant to this Section 3.01.
(i) The Company shall pay to the Agent for the account of each Bank a letter of credit fee (the "Letter of Credit Fee") on such time to issue Bank's share (as determined in accordance with Section 3.01(d) above) of each Letter of Credit in the daily average undrawn Face Amount of such Letter of Credit for the period from and including the date of issuance thereof to and including the date of expiration or termination thereof at a rate per annum equal to the Applicable Margin, such fee to be paid quarterly in arrears on the 1st day of each March, June, September and December, and on the date of expiration of such Letter of Credit; provided that if any such day is not a Business Day, such fee shall be payable on the next preceding Business Day.
(j) The Company shall pay to the Issuing Bank for the sole account of the Issuing Bank a letter of credit fronting fee (the "Fronting Fee"), based on the aggregate daily average undrawn Face Amount of Letters of Credit outstanding from time to time, pursuant to the Fee Letter, such Fronting Fee to be paid quarterly in arrears on the last day of each March, June, September and December; provided that if any such day is not a Business Day, such fee shall be payable on the next preceding Business Day. The Company shall also pay such other fees with respect to issuance, amendment, advising and like services by the Issuing Bank as are generally charged to its amended form customers by the Issuing Bank for such services at the time such service is performed.
(k) The obligations of the Company under this Section 3.01 shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms hereofof this Agreement under all circumstances, including circumstances such as: (a) any lack of validity or enforceability of any Letter of Credit or any other Credit Document; (Bb) the existence of any claim, set off, defense or other right that the Company or any other Person may have at any time against any beneficiary or transferee of any Letter of Credit (or any Persons for whom any such beneficiary or transferee may be acting), the Issuing Bank, any Bank or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or any unrelated transaction; (c) any draft, certificate, statement or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect of any statement therein being untrue or inaccurate in any respect; (d) payment to the beneficiary of such Letter of Credit by the Issuing Bank under any Letter of Credit against presentation of a draft or certificate that does not accept comply with the proposed amendment terms of such Letter of Credit, or payment to the beneficiary of such Letter of Credit by the Issuing Bank under the Letter of Credit in any other circumstances in which conditions to payment are not met, except any such payment resulting solely from the gross negligence or willful misconduct of such Issuing Bank; or (e) any other event, condition or circumstance whatever, whether or not similar to any of the foregoing. The Company bears the risk of, and neither the Issuing Bank, any of its directors, officers, employees or agents, nor any Bank, shall be liable or responsible for, any of the foregoing matters, the use that may be made of any Letter of Credit or acts or omissions of the beneficiary or any transferee in connection therewith.
(l) On each day during the period commencing with the issuance by the Issuing Bank of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the Commitment of each Bank shall be deemed to be utilized for all purposes hereof (including Section 2.04) in an amount equal to such Bank's share (as determined in accordance with Section 3.01(d) above) of the then undrawn Face Amount of such Letter of Credit; provided, however, that for the purpose of determining whether any requested Loan or Letter of Credit would exceed the Total Commitment if made, on each day during the period commencing with the giving of notice by the Company to the Issuing Bank of a requested Letter of Credit pursuant to Section 3.01(c), the Commitment of each Bank shall be deemed to be utilized in an amount equal to such Bank's Commitment with respect to the then undrawn Face Amount of such Letter of Credit.
(hm) The issuance by the Issuing Bank of each Letter of Credit Issuer shall, in addition to the conditions precedent set forth in Article VII, be subject to the conditions precedent that such Letter of Credit shall act be in such form as shall be satisfactory to the Issuing Bank in its reasonable discretion and that the Company shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Issuing Bank shall have reasonably requested.
(n) If, at any time, after the Issuing Bank has made payment on behalf a demand under a Letter of Credit and has received from any Bank such Bank's share of such payment, and the Issuing Bank receives any payment or makes any application of funds on account of the Revolving Company's Reimbursement Obligations under such Letter of Credit Lenders arising from such payment, the Issuing Bank will pay to the Agent, for the account of such Bank, such Bank's share (as determined in accordance with Section 3.01(d) above) of such payment.
(o) If any amount received by the Issuing Bank on account of any Letter of Credit Reimbursement Obligation shall be avoided, rescinded or otherwise returned or paid over by the Issuing Bank for any reason at any time, whether before or after the termination of this Agreement (or the Issuing Bank believes in good faith that such avoidance, rescission, return or payment is required, whether or not such matter has been adjudicated), each Bank shall, promptly upon notice from the Issuing Bank, pay over to the Agent for the account of the Issuing Bank its share (as determined in accordance with Section 3.01(d) above) of such amount, together with its Pro Rata Share of any interest or penalties payable with respect thereto.
(p) In the event that the obligations of any Bank to any make Loans or of the Issuing Bank to issue Letters of Credit issued by it and terminates upon the documents associated therewith and occurrence of an event of default or otherwise, upon such termination, the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided Company shall, prior 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 Termination Date, either (i) cause all Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining returned to the Issuing Bank for cancellation or (ii) deposit with the Issuing Bank an amount of cash equal to the Face Amount of all Letters of Credit not so returned to the Issuing Bank upon such termination. The Issuing Bank shall hold funds so deposited for the ratable benefit of the Banks as collateral against the obligation of the Banks to pay such Letters of Credit as fully as if in the term “Administrative Agent” as used in event of any draw with respect hereto. The Issuing Bank shall return to the Company any amounts deposited with it pursuant to this Section 13 included 3.01(p) promptly upon the expiration or cancellation of each Letter of Credit Issuer with respect to which such acts or omissionsfunds were deposited.
(q) Notwithstanding any other provision hereof, and (B) as additionally provided herein with respect each Bank hereby agrees that its obligation to the participate in each Letter of Credit Issuerissued in accordance herewith, its obligation to make the payments specified in this Section 3.01, and the right of the Issuing Bank to receive such payments in the manner specified therein, are each absolute, irrevocable and unconditional and shall not be affected by any event, condition or circumstance whatsoever. The failure of any Bank to make any such payment shall not relieve any other Bank of its funding obligation hereunder on the date due, but no Bank shall be responsible for the failure of any other Bank to meet its funding obligations hereunder.
Appears in 1 contract
Samples: Revolving Credit Agreement (Health Care Property Investors Inc)
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, at On any time and from time to time after the Original Closing Date and Business Day prior to the L/C Revolving Facility Final Maturity Date, the Letter of Credit Issuer agreesIssuer, in reliance upon the agreements of the Revolving Credit other Lenders set forth pursuant to Section 3.4 and Section 3.5, may, in this Section 3its sole discretion, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon issue, at the request ofof the Borrower, and Letters of Credit for the direct or indirect benefit of, account of the Borrower and or any Subsidiary (as specified by the Restricted Subsidiaries, a letter of credit or letters of credit (Borrower in the “Letters of Credit” and each, a “request for such Letter of Credit”) in such form as may be approved by on the Letter of Credit Issuer in its reasonable discretionterms and conditions hereinafter set forth; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, (i) each Letter of Credit issued for shall expire on the account earlier of a Restricted Subsidiary.
(bA) Notwithstanding 18 months after the foregoing, (i) no date of issuance of such Letter of Credit shall be issued (or, in the Stated Amount case of whichany renewal or extension thereof, when added one year after such renewal or extension) and (B) the date that is five (5) Business Days prior to the Letters Revolving Facility Final Maturity Date; (ii) the Borrower may not request any Letter of Credit Outstanding at if, after giving effect to such timeissuance, (A) the aggregate Letter of Credit Exposure 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 aggregate Revolving Credit Exposure of such Letter of Credit does not accept all Lenders would exceed the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf amount of the Total Revolving Credit Lenders with respect to any Letters of Credit issued by it Commitment and (iii) the documents associated therewith Borrower shall not request, and the Letter of Credit Issuer shall have all no obligation to issue, any Letter of Credit the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect proceeds of which would be made available to any acts taken Person (I) to fund any activity or omissions suffered business of or with any Sanctioned Person or in any Sanctioned Countries, that, at the time of such funding, is the subject of any Sanctions or (II) in any manner that would result in a violation of any Sanctions by any party to this Agreement. Each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Letter of Credit Issuer without recourse a participation in connection each Letter of Credit equal to such Lender’s Pro Rata Share of the aggregate amount available to be drawn under such Letter of Credit (x) on the Closing Date with respect to all Existing Letters of Credit issued by it or proposed and (y) on the date of issuance with respect to be issued by it and Issuer Documents pertaining to such all other Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Credit. Each issuance of a Letter of Credit Issuer with respect shall be deemed to such acts or omissions, and (B) as additionally provided herein with respect utilize the Revolving Commitment of each Lender by an amount equal to the Letter amount of Credit Issuersuch participation.
Appears in 1 contract
Samples: Credit Agreement (Air Transport Services Group, Inc.)
Letters of Credit. (a) Subject to the terms contained in this Agreement and the other Loan Docu- ments, 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 2.1(c) requesting the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements issuance 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 the Fronting Bank shall issue the Letters of Credit”) Credit in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that is reasonably acceptable to the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for in an amount equal to the account of a Restricted Subsidiaryamount set forth in the notice deliv- ered pursuant to Section 2.1(c) hereof.
(b) Notwithstanding the foregoing, (i) no The Letter of Credit Usage shall be issued no more than Thirty Million Dollars ($30,000,000) in 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 13.1aggregate.
(c) Upon at least one Business Day’s prior written notice There shall be no more than five (or telephonic notice promptly confirmed in writing5) to Letters of Credit issued hereunder.
(d) In the Administrative Agent and event of any request for a drawing under the Letter of Credit Issuer by the beneficiary thereunder, the Fronting Bank shall endeavor to notify the Borrower and the Agent (and the Agent shall endeavor to notify each Lender thereof) on or before the date on which the Administrative Agent shall promptly notify the applicable LendersFronting Bank intends to honor such drawing, and, except as provided in this subsection (d), the Borrower shall have reimburse the rightFronting 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 con- tained herein to the contrary, however, unless the Borrower shall have notified the 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 the Bor- rower 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 2.1(b) to the Agent, requesting a Borrowing of Base Rate Loans on the date on which such drawing is honored and in an amount equal to the amount of such drawing. Each Lender (other than the Front- ing Bank) shall, in accordance with Section 2.1(b), make available its share of such Borrowing to the Agent, the proceeds of which shall be applied directly by the Agent to reimburse the Fronting Bank for the amount of such draw. In the event that any daysuch Lender fails to make available to the Fronting Bank the amount of such Lender's participation on the date of a drawing, permanently the Fronting Bank shall be enti- tled to terminate recover such amount on demand from such Lender together with interest at the Federal Funds Rate commencing on the date such drawing is honored.
(e) If, after the date hereof, any change in any law or reduce regulation or in the interpretation thereof by any court or administrative or governmental authority charged with the administration thereof shall either (i) 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 Lender (in- cluding the Fronting Bank) or (ii) impose on any Lender any other condition regarding this Agreement or such Lender (in- cluding the Fronting Bank) as it pertains to a Letter of Credit Commitment or any participation therein and the result of any event referred to in the preceding clause (i) or (ii) shall be to increase, by an amount deemed by the Fronting Bank or such Lender to be material, the cost to the Fronting Bank or any Lender of issuing or maintaining a Letter of Credit or participating therein then the Borrower shall pay to the Fronting Bank or such Lender, within 15 days after written demand by such Lender (with a copy to the Agent), which demand shall be accompanied by a certificate showing, in reasonable detail, the calculation of such amount or amounts, such additional amounts as shall be required to compensate the Fronting Bank or such Lender for such in- creased costs or reduction in amounts received or receivable hereunder.
(f) The Borrower hereby agrees to protect, indem- nify, 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 any Letter of Credit, other than as a result of the gross negligence or wilful misconduct of the Fronting Bank or (ii) the failure of the Fronting Bank to honor a drawing under any Letter of Credit 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 (col- lectively, "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, any Letter of Credit issued by the Fronting Bank, by the beneficiaries of such Letter of Credit. In fur- therance and not in limitation of the foregoing, the Front- ing Bank shall not be responsible (i) for the form, valid- ity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of the Letters of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or insufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits there- under or proceeds thereof, in whole or in part, provided that, after giving effect which may prove to such termination be invalid or reduction, ineffective for any reason; (iii) for failure of the Letters beneficiary 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:
to comply fully with conditions required in order to draw upon any Letter of Credit; (iiv) any orderfor errors, judgment omissions, interruptions or decree delays in transmission or delivery of any Governmental Authority message, by mail, cable, telegraph, telex, facsimile transmission, or arbitrator shall by its terms purport 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 enjoin or restrain the make a drawing under any Letter of Credit Issuer from issuing or of the proceeds there- of; (vii) for the misapplication by the beneficiary of a Letter of Credit of the proceeds of such Letter of Credit, or ; and (viii) for any law applicable to consequence arising from causes beyond 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 control 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 IssuerFronting Bank, 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 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 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 case other than as a result 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 gross negligence or willful misconduct of the benefits Fronting Bank. None of the above shall affect, impair or prevent the vesting of the Fronting Bank's rights and immunities (A) provided to powers hereunder. In fur- therance and extension and not in limitation of the Administrative Agent in Section 13 with respect to specific provisions hereinabove set forth, any acts action taken or omissions suffered omit- xxx by the Letter of Credit Issuer Fronting Bank under or in connection with Letters a Letter of Credit issued by it or proposed the related certificates, if taken or omitted in good faith, shall not put the Front- ing Bank under any resulting liability to be issued the Borrower.
(g) If the Fronting Bank or the Agent is required at any time, pursuant to any bankruptcy, insolvency, liqui- dation or reorganization law or otherwise, to return to the Borrower any reimbursement by it and Issuer Documents pertaining to such Letters the Borrower of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the any drawing under any Letter of Credit Issuer Credit, each Lender shall pay to the Fronting Bank or the Agent, as the case may be, its share of such payment, but without interest thereon unless the Front- ing Bank or the Agent is required to pay interest on such amounts to the person recovering such payment, in which case with respect to such acts or omissionsinterest thereon, computed at the same rate, and (B) on the same basis, as additionally provided herein with respect the interest that the Fronting Bank or the Agent is required to the Letter of Credit Issuerpay.
Appears in 1 contract
Samples: Revolving Credit Agreement (U S Restaurant Properties 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 The Purchaser has delivered 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 Seller two irrevocable standby letters of credit from Xxxxx Fargo Bank, N.A., the first of which shall have an aggregate face amount of $10,150,000 (the “Letters of Credit” and each, a “Letter of CreditGeneral Termination Fee L/C”) in such form as may be approved by and the Letter second of Credit Issuer in its reasonable discretion; provided that which shall have an aggregate face amount of $4,350,000 (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“Maximum Termination Fee L/C”).
(b) Notwithstanding In the foregoing, event that (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; Closing occurs or (ii) subject this Agreement is terminated and (A) the Purchaser and the Seller mutually agree that the Seller is not entitled to clause receive a Termination Fee under the terms of this Agreement, (B) the Seller does not provide notice to the Purchaser within 30 days following the date of such termination that it believes the Seller is entitled to receive a Termination Fee under the terms of this Agreement, (C) the Purchaser has paid the Maximum Termination Fee pursuant to Section 9.2(c) or (D) the Purchaser has received a Final Determination in favor of the Purchaser that the Seller is not entitled to receive a Termination Fee under the terms of this Agreement, then the Seller shall promptly execute and deliver to each of the financial institutions that issued the General Termination Fee L/C and the Maximum Termination Fee L/C written certificates or statements, in the form attached to such letters of credit or otherwise required by such financial institutions, certifying on behalf of the Seller that the conditions to the termination of such letters of credit have been satisfied and that such letters of credit should as a result be terminated.
(c) In the event that this Agreement is terminated and (i) the Purchaser and the Seller mutually agree that the Seller is not entitled to receive the Maximum Termination Fee under the terms of this Agreement, (ii) the Seller does not provide notice to the Purchaser within 30 days following the date of such termination that it believes the Seller is entitled to receive the Maximum Termination Fee under the terms of this Agreement or (iii) the Purchaser has received a Final Determination in favor of the Purchaser that the Seller is not entitled to receive the Maximum Termination Fee under the terms of this Agreement, then the Seller shall promptly execute and deliver to each of the financial institutions that issued the Maximum Termination Fee L/C a written certificate or statement, in the form attached to such letters of credit or otherwise required by such financial institutions, certifying on behalf of the Seller that the conditions to the termination of the Maximum Termination Fee L/C have been satisfied and that the Maximum Termination Fee L/C should as a result be terminated.
(d) In the event that the Purchaser has paid the General Termination Fee pursuant to Section 9.2(c), then the Seller shall promptly execute and deliver to each of the financial institutions that issued the General Termination Fee L/C a written certificate or statement, in the form attached to such letters of credit or otherwise required by such financial institutions, certifying on behalf of the Seller that the conditions to the termination of the General Termination Fee L/C have been satisfied and that the General Termination Fee L/C should as a result be terminated.
(e) In the event that the Seller is entitled to receive the General Termination Fee (but not the Maximum Termination Fee) under the terms of this Agreement and such amount has not been timely paid by the Purchaser as required by Section 9.2(c), the Purchaser shall promptly execute and deliver to each of the financial institutions that issued the General Termination Fee L/C a counterpart to a joint instruction authorizing a draw down under the General Termination Fee L/C in the amount of the General Termination Fee and the Seller shall cause the Maximum Termination Fee L/C to be terminated as provided in Section 6.22(c).
(f) belowIn the event that the Seller is entitled to receive the Maximum Termination Fee under the terms of this Agreement and such amount has not been timely paid by the Purchaser as required by Section 9.2(c), no Letter the Purchaser shall promptly execute and deliver to each of Credit shall be the financial institutions that issued the Stated Amount of which would cause General Termination Fee L/C and the Maximum Termination Fee L/C counterpart to joint instructions authorizing a draw down under the General Termination Fee L/C and the Maximum Termination Fee L/C in 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 effectMaximum Termination Fee; (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 if 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 Purchaser has previously paid 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)General Termination Fee, 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 Purchaser shall not 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 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 provide a joint instruction 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.General Termination Fee L/C.
Appears in 1 contract
Samples: Equity Purchase Agreement (Nci Building Systems 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 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. (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 Commitment Termination Date upon the request of the Borrower, but only for the purposes of securing amounts that could be borrowed pursuant to Section 2.1(a) on the date of issuance of the Letter of Credit; provided, however, that (A) the Borrower shall not request that any Letter of Credit be issued if, after giving effect thereto, (i) the then current 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 Exposure would exceed the L/C Maturity Date upon Sublimit or (ii) the request ofsum of the then current L/C Exposure, plus the aggregate principal amount of the Loans then outstanding, would exceed the Total Commitments, 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 Commitment Termination Date or pursuant to which drafts drawn thereunder would be payable later than five Business Days prior to the Commitment Termination Date or (y) more than one year after 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 Subsidiaryissuance (or extension).
(b) Notwithstanding Immediately upon the foregoing, (i) no issuance of each Letter of Credit 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 Issuing Bank 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.
(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 of the International Chamber of Commerce No. 500, as adopted or amended from time to time. The Issuing Bank shall be entitled to honor any drafts and accept any documents presented to it by the beneficiary of such Letter of Credit in accordance with the terms of such Letter of Credit and believed by the Issuing Bank in good faith to be genuine. The Issuing Bank shall not accept have any duty to inquire as to the proposed amendment accuracy or authenticity of any draft or other drawing documents which may be presented to such 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 Revolving 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 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 2.15(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 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). 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 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 2.4.
(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 for the period from and including the date of issuance of such Letter of Credit to but excluding the Maturity Date, computed at a rate equal to 1/4 of 1% per annum of the benefits daily average L/C Exposure, such fee to be due and immunities payable in arrears on and through the last Business Day of each calendar quarter, prior to the Maturity Date, on the Maturity Date and on the expiration of the last outstanding Letter of Credit.
(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 (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 Maturity Date, on the Maturity Date and on the expiration of the last outstanding Letter of Credit.
(iii) Promptly upon receipt by the Issuing Bank or the Administrative Agent, as applicable, of any amount described in clause (ii) of this Section 2.15(h), or any amount described in Section 13 with respect 2.15(h) previously reimbursed to any acts taken or omissions suffered the Issuing Bank by the Letter Lenders, the Issuing Bank shall distribute to each Lender its Pro Rata Share of Credit Issuer in connection with such amount. Amounts payable under clauses (i)(A) and (i)(B) of this Section 2.15(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 issued by it shall remain outstanding, then the Required Lenders or proposed 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 issued by it and Issuer Documents pertaining 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 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 deposit to the Letter of Credit IssuerBorrower upon request.
Appears in 1 contract
Samples: Credit, Security, Guaranty and Pledge Agreement (Idt 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 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 SubsidiariesCredit Parties, 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 in its reasonable discretion; provided that that, if requested by the Letter of Credit Issuer, 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 SubsidiaryCredit Party (other than the Borrower). Notwithstanding anything to the contrary in the foregoing, subject to the Interim DIP Order, the Pre-Petition Letters of Credit shall be deemed to have been issued hereunder as “Letters of Credit” (the “Roll-Up Letters of Credit”).
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued if the Stated Amount of whichAmount, 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 if 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 issued, at any time during the period between the Closing Date through and including the Final DIP Order Entry Date, if the Stated Amount of which would cause the Aggregate Multicurrency aggregate amount of all Lenders’ Total Exposures at the such time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; Interim Cap, (iv) each Letter of Credit shall have an expiration date occurring no later than one year the earlier of (A) 12 months (or 18 months in the case of any Letters of Credit issued in favor of the Railroad Commission of Texas, as beneficiary) after the date of issuance thereofor such longer period of time as may be agreed by the Letter of Credit Issuer and (B) the L/C Maturity Date, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer or as provided under Section 3.2(b); provided that ay Letter of Credit may provide for automatic renewal thereof for additional periods of to 12 months or such longer period of time as may be agreed by the Letter of Credit Issuer, 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 reasonably satisfactory to the Administrative Agent and the 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 Termination 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 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 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. Notwithstanding anything to the contrary in this clause (b), no Letter of Credit shall be issued if the Stated Amount would cause the aggregate amount of all Lenders’ Total Exposures at such time to exceed the amount authorized under the DIP Order then in effect.
(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
Samples: Senior Secured Super Priority Debtor in Possession Credit Agreement (Denbury Resources Inc)
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 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 Exposure, plus the aggregate principal amount of the Loans then outstanding, would exceed the lesser of (i) the then current amount of the Borrowing Base and (ii) the Total Commitments then in effect, (B) in no event shall the Issuing Bank issue any Letter of Credit having an expiration date later than five Business Days prior to the Maturity Date or pursuant to which drafts drawn thereunder would be payable later than five Business Days prior to the Maturity Date, and (C) the Borrower shall not request that any Letter of Credit Issuer agreesbe issued if, in reliance upon after giving effect thereto, 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 then current L/C Exposure would exceed 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 SubsidiarySublimit.
(b) Notwithstanding Immediately upon the foregoing, (i) no issuance of each Letter of Credit 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 Issuing Bank 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.
(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 Revolving 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 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 2.14(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 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 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 2.3.
(i) The Borrower agrees to pay the following amounts (collectively, the “Letter of Credit Fees”) 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 0.25% 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 Maturity Date and on the Maturity Date, in each case for the actual number of days elapsed over a 360-day year (Athe “L/C Fronting Fees”).
(ii) 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 Facility (calculated in the same manner as interest) of the undrawn portion of the L/C Exposure (the “Undrawn L/C Fees”). Such commission shall be payable in arrears on and through the last Business Day of each calendar quarter prior to the Maturity Date and on the 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 2.14(h), or any amount described in Section 13 with respect 2.14(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 2.14(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 is 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 105% 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, unless required to be held pursuant to clause (k) of this Section 2.14.
(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 lesser of the Total Commitments and the Borrowing Base as set forth on the most recent Borrowing Base Certificate, 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 2.8(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
Letters of Credit. (a) Subject If, as of any date that is five Business Days prior to the stated expiration date of any Letter of Credit, a Letter of Credit (which may be a renewal or extension of the expiring Letter of Credit) in the same amount as the amount then available for drawing under the expiring Letter of Credit has not been delivered to the Trustee, the Trustee shall, on the next Business Day, cause to be presented to the issuer of the expiring Letter of Credit a draft in proper form for payment thereunder and upon otherwise in conformity with the terms thereof for the full amount then available to be drawn thereunder. Proceeds received in payment of each such draft shall be deposited and conditions herein held in the Letter of Credit Proceeds Sub-Account of the Spread Account.
(b) Upon discovery by the Representative, any Account Party, the Certificate Insurer or the Trustee that the short-term debt obligations, if any, of any Letter of Credit Bank have a rating of lower than "A-2" by S&P or Prime-1 by Xxxxx'x, the party discovering such rating hereby covenants and warrants that it shall promptly give written notice to the others. If, within 15 days of its giving or receipt of such notice, as the case may be, the Trustee has not received a substitute Letter of Credit meeting the requirements of this Agreement in replacement of such Letter of Credit, the Trustee shall cause to be presented to the issuer of such Letter of Credit a draft in proper form for payment thereunder and otherwise in conformity with the terms thereof for the full amount available to be drawn thereunder. Proceeds received in payment of each such draft shall be deposited and held in the payment of each such draft shall be deposited and held in the Letter of Credit Proceeds Sub-Account of the Spread Account.
(c) The receipt by the Trustee of any Draw Amount or of the proceeds of a drawing under a Letter of Credit pursuant to Section 6.11(a) or 6.11(b) hereof shall be deemed to create an obligation to reimburse the Account Party of the related Letter of Credit. Each such obligation (an "LC Obligation") shall be deemed to have an original principal amount equal to the related Draw Amount or drawing pursuant to Section 6.11(a) or 6.11(b) as the case may be, and shall accrue interest at the rate agreed to by the related Account Party and the Representative, and shall be payable only to the extent set forthforth in Section 6.09(b)(v).
(d) Upon receipt by the Trustee of the proceeds of a drawing under any Letter of Credit, at (i) the Trustee will deposit the same directly to the Letter of Credit Proceeds Sub-Account of the Spread Account, (ii) no portion of said proceeds shall be applied by the Trustee for any other purpose, and (iii) no portion of said proceeds shall be commingled with other funds held by the Trustee.
(e) At any time and from time to time after the Original Closing Date and prior Class R Certificateholders may cause to be delivered to the L/C Maturity DateTrustee, the Letter of Credit Issuer agreesupon written notice to S&P, 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 one 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 more Letters of Credit Outstanding at such timefor deposit in the Spread Account, 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 held by the Administrative Agent and the Letter Trustee in lieu 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 cash 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 Permitted Instruments 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 replacement of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter other Letter(s) of Credit, or . The Trustee shall accept 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, only if such Letter of Credit is in accompanied by (i) an initial Stated Amount less than $100,000 or opinion of counsel to the Dollar Equivalent thereofissuer thereof reasonably satisfactory to the Certificate Insurer, in the case of a commercial Letter of CreditTrustee, or $10,000 or S&P and Xxxxx'x to the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
effect that (ivx) such Letter of Credit is denominated in has been duly authorized, executed and delivered by the issuer thereof and constitutes a currency other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date valid and binding obligation of such requested Letter of Credit issue letters of credit in the requested currency;
issuer, subject only to laws affecting creditors' rights generally, (viy) 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 require registration under the Securities Act of 1933, as amended, and (z) payments by the Trustee in respect of the Class A Certificates, as provided in the Agreement, derived from a draw by the Trustee under the Letter of Credit and held in non- commingled funds would not constitute transfers avoidable under 11 U.S. C. ss. 547(b) and recoverable from the Trustee or the holders of the Class A Certificates under 11 U.S.C. ss. 550(a) should the Account Party be the debtor in a case under the United States Bankruptcy Code (Title 11, U.S.C), and (ii) an opinion of tax counsel reasonably acceptable to the Certificate Insurer and the Trustee to the effect that delivery of such Letter of Credit either in lieu of cash or Permitted Instruments, or in replacement of any other Letter(s) of Credit, as the case may be, will not cause (x) any tax to be imposed on the Trust Fund, including without limitation, any tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code and (y) the Trust Fund to fail to qualify as a REMIC at any time that any Certificate is outstanding. The Trustee may from time to time accept cash in replacement of any Letter of Credit, but only upon the proposed amendment prior written consent of the Certificate Insurer, and upon delivery of any Opinions of Counsel which may be required by the Certificate Insurer. The Trustee shall give prompt notice of the delivery of any such cash to Xxxxx'x and S&P. Upon receipt of such Letter of Credit and opinions, the amount available to be drawn under the Letter of Credit shall be deemed to be on deposit in the Spread Account for all purposes of this Agreement. As soon as practicable after the delivery of any Letter of Credit, or, in any event within two Business Days after its effective date, the Trustee shall surrender to the issuer of any Letter of Credit being replaced, such Letter of Credit which is being replaced, or, if such Letter of Credit is being delivered in replacement of amounts (other than amounts represented by Letters of Credit) then on deposit in the Spread Account, withdraw from the Spread Account and pay to the Class R Certificateholders delivering such Letter of Credit an amount equal to the amount available to be drawn under such Letter of Credit.
(hf) The Letter At any time and from time to time the Class R Certificateholders may deliver cash or Permitted Instruments to the Trustee for deposit in the Spread Account, and the Trustee shall accept any such delivery if such delivery is accompanied by an opinion of Credit Issuer shall act tax counsel reasonably acceptable to the Certificate Insurer to the effect that such delivery will not cause (a) any tax to be imposed on behalf the Trust Fund, including without limitation, any tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and Code or on "contributions after the documents associated therewith and the Letter of Credit Issuer shall have all startup date" under Section 860G(d)(1) 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, code and (Bb) the Trust Fund to fail to qualify as additionally provided herein with respect to the Letter of Credit Issuera REMIC at any time that any Certificate is outstanding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Eqcc Asset Backed 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 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 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 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 (xA) rescission of such notice from the party or parties originally delivering such notice or (yB) 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 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 (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 LenderPerson.
(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, 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 the terms and conditions herein set forth, at any time hereof 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 satisfaction of the Revolving Credit Lenders applicable conditions set forth in this Section 3Sections 3(c) and (d), to Buyer shall issue from time to time from or cause the Original Closing Date through issuance of Letters of Credit on behalf of any Seller (and, if applicable, on behalf of or for the L/C Maturity Date upon the request account of, and for an Underlying Obligor or an Affiliate thereof) in favor of the direct applicable Underlying Obligor (or indirect benefit of, the Borrower and the Restricted Subsidiaries, such beneficiaries as such Underlying Obligor may elect) under a letter of credit or letters of credit (the “Letters of Credit” and each, a “Purchased Loan with an associated Letter of Credit; provided, however, that Buyer will not be required to issue or cause to be issued any Letters of Credit to the extent that after giving effect thereto:
(i) the sum of the (x) the product of (1) the aggregate face amount of all outstanding Committed LC’s multiplied by (2) the Advance Rate and (y) the aggregate face amount of all outstanding Issued LC’s (such sum, the “LC Amount”) in would exceed the LC Sublimit at such form as may be approved by time; or
(ii) the Letter of Credit Issuer in its reasonable discretion; provided that aggregate Repurchase Price outstanding for all Transactions plus the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for LC Amount would exceed the account of a Restricted SubsidiaryFacility Amount at such time.
(b) Notwithstanding the foregoing, A Seller may request Buyer to (i) issue a Letter of Credit or (ii) commit to issue a Letter of Credit pursuant to a Committed LC, in each case, by delivering to Buyer (with a copy to Buyer Agent) no later than 11:00 a.m. three (3) Business Days before the requested date of issuance of a Letter of Credit or agreement to a Committed LC, an LC Request completed to the satisfaction of Buyer and specifying the date of issuance or agreement to a Committed LC (which shall be a Business Day), the date on which such Letter of Credit or Committed LC is to expire (which shall comply with clause (d) of this Section 4), the amount of such Letter of Credit or Committed LC, the currency in which such Letter of Credit or Committed LC is to be denominated (which shall be a Permitted Currency); and such other certificates, documents and other papers and information as Buyer may reasonably request; provided that no such LC Request shall be required in respect of an automatic extension of the expiry date of any Letter of Credit pursuant to the terms and conditions of such Letter of Credit. Buyer’s commitment to issue a Letter of Credit pursuant to a Committed LC, and the terms for such commitment and Letter of Credit shall be issued set in the Stated Amount of which, when added to the Letters of Credit Outstanding at Confirmation for 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 13.1Transaction.
(c) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Each Letter of Credit Issuer (which shall expire or be terminated at or prior to the Administrative Agent shall promptly notify close of business on the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter earliest 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 the date twelve months after the date 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 thereofor, in the case of a commercial Letter of Credit, any renewal or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
extension thereof (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 including 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 extensions of such Letter of Credit does contemplated by clause (d) of this Section 4), twelve months after the then-current expiration date of such Letter of Credit), (ii) within three (3) Business Days after written notice from Seller to Buyer requesting termination of such Letter of Credit and (iii) five (5) Business Days prior to the earlier of (x) the Repurchase Date in respect of the related Purchased Loan and (y) the Facility Expiration Date. Each Committed LC shall expire or be terminated at or prior to the close of business on the earliest of (i) the date of the issuance of such Letter of Credit with respect to all or a portion of the commitment under such Committed LC, (ii) within three (3) Business Days after written notice from Seller to Buyer requesting termination of such Committed LC and (iii) five (5) Business Days prior to the earlier of (x) the Repurchase Date in respect of the related Purchased Loan and (y) the Facility Expiration Date.
(d) Subject to a final expiration date as specified in clause (c) of this Section 4, each Letter of Credit may provide for the automatic extension of the expiry date thereof unless the Buyer gives notice in accordance with the Letter of Credit that such expiry date shall not accept be extended, and Buyer shall give such notice to the proposed amendment applicable Seller not more than sixty (60) days, but not less than forty-five (45) days, prior to the current expiry date of such Letter of Credit.
(he) The On the Purchase Date of any Purchased Loan associated with a Letter of Credit, the applicable Seller shall sell and assign to Buyer the reimbursement obligations of the applicable Underlying Obligor under such Letter of Credit. Upon a request for a drawing under such Letter of Credit Issuer shall act by the applicable Underlying Obligor or a beneficiary thereof and the disbursement of an advance under such Letter of Credit by Buyer to or on behalf of such Underlying Obligor, the Revolving Credit Lenders with respect Outstanding Principal Balance of such Purchased Loan shall be increased by an amount equal to such reimbursement obligation from the related Underlying Obligor.
(f) Each Seller agrees to be bound by the terms of each LC Request delivered by it and by Buyer’s interpretation of any Letters Letter of Credit issued by it Buyer and by Buyer’s written regulations and customary practices relating to letters of credit, though Buyer’s interpretation of such regulations and practices may be different from such Seller’s own. In the documents associated therewith and event of a conflict between the Letter of Credit Issuer shall have all of the benefits documents 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 this Agreement with respect to the respective rights and obligations of Seller and Buyer, this Agreement shall govern.
(g) Neither Buyer nor Buyer Agent shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit Issuerby Buyer 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 Buyer or any error, negligence and/or mistakes, whether of omission or commission, in following any Seller’s instructions or those contained in the Letters of Credit or any modifications, amendments or supplements thereto; provided that, none of the foregoing shall be construed to excuse Buyer from liability to any Seller to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by each Seller to the extent permitted by applicable law) suffered by such Seller that are caused by Buyer’s gross negligence or willful misconduct as determined in a non-appealable judgment by a court of competent jurisdiction when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. In furtherance of the foregoing, the parties hereto expressly agree that, in the absence of gross negligence or willful misconduct as determined in a non-appealable judgment by a court of competent jurisdiction on the part of Buyer: (i) in determining whether to honor any request for a drawing under any Letter of Credit by the beneficiary thereof, Buyer shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit and that any other drawing condition appearing on the face of such letter of Credit has been satisfied in the manner so set forth and (ii) Buyer shall have the right, in its sole discretion, to decline to accept such documents and to decline to honor such request for a drawing.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract (Starwood Property Trust, Inc.)
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 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 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, the L/C Maturity Date Exposure would exceed $100,000,000, 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 ofcontinuance of an Event of Default. In addition to the foregoing, the Borrower and may request the Restricted Subsidiaries, a letter issuance of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) Avis L/C 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 an 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 not exceeding $400,000,000, 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 may have an expiration date occurring no later than one year eighteen months after the first date of issuance thereof, unless otherwise agreed upon by for use solely in connection with the Administrative Agent and the Letter Borrower's acquisition of Credit IssuerAvis, provided that in no event shall such expiration date occur later than the sum of the total L/C Maturity Date; Exposure at any time exceed $400,000,000.
(vii) Immediately upon the issuance of each Letter of Credit Credit, each Lender shall be denominated deemed to, and hereby agrees to, have irrevocably purchased from the applicable Issuing Lender, a participation in Dollars or an Alternative Currency; (vi) no such Letter of Credit in accordance with the percentage which its Commitment represents to the Total Commitment.
(iii) 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 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.
(civ) Upon at least one Business Day’s prior written notice Letters of Credit issued under the Existing Credit Agreement and outstanding on the Closing Date shall be deemed to be Letters of Credit issued under this Agreement on the Closing Date.
(or telephonic notice promptly confirmed in writingb) 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, documentary 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 Agent for distribution to each Lender in respect of all 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 issued by any Issuing Lender or participations therein purchased by any Lender; or
(C) there shall prohibitbe imposed on any Issuing Lender or any Lender any other condition regarding this Section 2.24, or request that the any Letter of Credit Issuer refrain fromor any participation therein; and the result of the foregoing is directly or indirectly to increase the cost to any Issuing Lender or any Lender of issuing, the issuance of letters of credit generally making or such maintaining any Letter of Credit or of purchasing or maintaining any participation therein, or to reduce the amount receivable in particular respect thereof by any Issuing Lender or any Lender, then and in any such case the Issuing Lender or such Lender may, at any time, notify the Borrower, and the Borrower shall impose upon pay on demand such amounts as such Issuing Lender or such Lender may specify to be necessary to compensate such Issuing Lender or such Lender for such additional cost or reduced receipt. The determination by any Issuing Lender or any Lender, as the Letter case may be, of any amount due pursuant to this Section 2.24 as set forth in a certificate setting forth the calculation thereof in reasonable detail shall, in the absence of manifest error, be final, conclusive and binding on all of the parties hereto.
(h) If at any time when an Event of Default shall have occurred and be continuing, any Letters of Credit Issuer with respect shall remain outstanding, then either the applicable Issuing Lender(s) or the Required Lenders may, at their option, require the Borrower to such Letter of Credit any restriction, reserve or capital requirement (for which deposit Cash Equivalents in a Cash Collateral Account in an amount equal to 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 full amount of the Letter of Credit Issuer applicable L/C Exposure or to letters of credit generally;
(iii) except as otherwise agreed by furnish other security acceptable to the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or applicable Issuing Lender(s). Any amounts so delivered pursuant to the Dollar Equivalent thereof, in preceding sentence shall be applied to reimburse the case of a commercial Letter of Credit, or $10,000 or applicable Issuing Lender(s) for 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 amount of any Revolving Credit Lender’s obligations to fund drawings honored 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 it; provided, however, that if prior to the documents associated therewith and Maturity Date, no Event of Default is then continuing, the Letter of Credit Issuer Administrative Agent shall have return all of such collateral relating to such deposit to the benefits and immunities Borrower if requested by it.
(Ai) provided If at any time, the L/C Exposure exceeds the aggregate Commitments, then the Required Lenders may, at their option, require the Borrower to deposit Cash Equivalents in a Cash Collateral Account in an amount sufficient to eliminate such excess or to furnish other security for such excess acceptable to the Administrative Agent in Section 13 with respect and the Issuing Lender(s). Any amounts so delivered pursuant to the preceding sentence shall be applied to reimburse the applicable, Issuing Lender(s) for the amount of any drawings honored under Letters of Credit; provided, however, that if subsequent to any acts taken such deposit such excess is reduced to an amount less than the portion of such deposited amounts and no Default or omissions suffered Event of Default is then continuing, the Borrower shall be entitled to receive such excess collateral if requested by it.
(j) Upon the request of the Administrative Agent, each Issuing Lender shall furnish to the Administrative Agent copies of any Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed such Issuing Lender and such related documentation as may be reasonably requested by the Administrative Agent.
(k) Notwithstanding the termination of the Commitments and the payment of the Loans, the obligations of the Borrower under this Section 2.24 shall remain in full force and effect until the Administrative Agent, each Issuing Lender and the Lenders shall have been irrevocably released from their obligations with regard to be issued by it any and Issuer Documents pertaining to such all 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 IssuerCredit.
Appears in 1 contract
Samples: Credit Agreement (HFS 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 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 (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 (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 (the “Canadian Letters 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 (Jostens IH Corp.)
Letters of Credit. (a) By delivering to the Agent an Issuance Request on a Business Day, prior to the Termination Date and not less than three Business Days prior to the requested date of issuance, Borrower may request that the Issuer issue an irrevocable letter of credit or a documentary letter of credit each in substantially the form of Exhibits I and J, respectively, attached hereto, with such insertions with respect to required presentation of documentation or certifications upon a draw as may be requested by the Borrower and approved by the Issuer, or in such other form as may be requested by the Borrower and approved by the Issuer and the Required Lenders (each a "Letter of Credit"), in support of financial obligations of the Borrower incurred in the ordinary course of business and which are described in such Issuance Request. Upon receipt of each Issuance Request, the Agent shall promptly notify the Lenders thereof. The stated amount of any Letter of Credit requested to be issued pursuant to an Issuance Request shall be denominated in Dollars.
(b) Each Letter of Credit shall by its terms: (i) be issued in a stated amount which (A) is at least $10,000, and (B) when added to the Letter of Credit Outstandings does not exceed (or would not exceed) the then Letter of Credit Availability and (C) when added to all Revolving Credit Loans and Letter of Credit Outstandings does not exceed the amount of the then Revolving Loan Commitment; (ii) be stated to expire on a date (its "Stated Expiry Date") no later than the earlier of 12 months from its date of issuance or the then Termination Date, whichever occurs first; and (iii) on or prior to its Stated Expiry Date (A) terminate immediately upon notice to the Issuer from the beneficiary thereunder that all obligations covered thereby have been terminated, paid, or otherwise satisfied in full, or (B) reduce in part immediately and to the extent the beneficiary thereunder has notified the Issuer that the obligations covered thereby have been paid or otherwise satisfied in part.
(c) 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 Dateof this Agreement, the Issuer shall issue Letters of Credit in accordance with the Issuance Requests made therefor. The Issuer will make available the original of each Letter of Credit Issuer agrees, which it issues in reliance upon accordance with the agreements Issuance Request therefor to the beneficiary thereof.
(d) The Borrower agrees to pay to the Agent for the account of the Revolving Credit Lenders set forth in this Section 3Issuer, with respect 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 ofeach Letter of Credit, the Borrower following fees: (i) an issuance fee of $75 for manual Letters of Credit and the Restricted Subsidiaries, a letter of credit or letters of credit (the “$45 for automated Letters of Credit” and each, ; (ii) $45 for each amendment to a “Letter of Credit”; (iii) an amount equal to 1/4 of 1% ($50 minimum) of the amount of each draw under a Letter of 33 Credit; (iv) a processing fee of $30 and (v) $75 in such form as may be approved by the case of each draw which the Borrower authorizes the Issuer to honor notwithstanding the failure of the beneficiary of a Letter of Credit Issuer in its reasonable discretion; provided to present any or all documents required by such Letter of Credit (it being agreed that the Borrower shall be required to reimburse the Issuer for any draws so authorized). It is understood that the foregoing charges are currently the Issuer's standard charges relating to Letters of Credit of the type contemplated hereby and that such charges may be changed by the Issuer from time to time. Any changes in such fees and charges shall be binding on the Borrower on the date each change therein is established by the Issuer.
(e) To the extent of its Percentage, each Lender agrees to and shall be deemed to have irrevocably purchased a co-applicant, and jointly and severally liable with respect to, participation in 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 on the date of issuance thereof, unless otherwise agreed upon by . Each Lender shall make available to 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 regardless 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 whether 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 shall have occurred and is continuing until such time as the Letter continuing, an amount equal to its respective Percentage 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, each drawing 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 each Letter of Credit in particular same day or shall impose upon immediately available funds not later than 4:00 p.m. New Jersey time on each Disbursement Date (as hereinafter defined) for each such drawing provided such Lender has received notice pursuant to Section 2.18(g) by 11:00 a.m. New Jersey time; and by 10:00 a.m. on the next Business Day if such notice is not received by 11:00 a.m. In the event that any Lender fails to make available to the Issuer the amount of such Lender's Percentage of any drawing on a Letter of Credit as provided herein, the Issuer shall be entitled to recover such amount on demand from such Lender together with respect interest at the daily average Federal Funds Rate for the first three Business Days after the Disbursement Date (together with such other compensatory amounts as may be required to be paid by such Letter Lender to the Issuer pursuant to the Rules for Interbank Compensation of Credit any restrictionthe Council on International Lending or of the New York Clearing House Compensation Committee, reserve or capital requirement (for which as the Letter of Credit Issuer is not otherwise compensated hereunder) not case may be, as in effect on from time to time) and thereafter at 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 LenderPrime Rate.
(f) The Letter of Credit Issuer Agent shall not amend distribute to each Lender that has paid all amounts payable by it under this Section 2.18 with respect to any Letter of Credit if issued by Issuer such Lender's Percentage of all payments received by the Letter Agent from the Borrower in reimbursement of Credit drawings honored by Issuer would not be permitted at such time to issue under such Letter of Credit in its amended form under the terms hereofpromptly after such payments are received.
(g) The Letter Issuer will notify the Borrower and the Agent promptly of Credit Issuer shall be under no obligation to amend the presentment for payment of any Letter of Credit (on the date of presentment, if possible, and otherwise on the next Business Day, it being agreed that such notice may be made by phone), together with notice of the date (Athe "Disbursement Date") such payment shall be made and the Letter Agent will promptly notify the Lenders of Credit Issuer would have no obligation at such time matters. Subject to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary and provisions of such Letter of Credit, the Issuer shall make such payment to the beneficiary (or its designee) of such Letter of Credit. Prior to 3:00 p.m. New Jersey time on the Disbursement Date, the Borrower shall (by payment to the Payment Office for distribution by the Agent) reimburse the Issuer for all amounts which have been disbursed under such Letter of Credit. To the extent the Issuer and the Lenders are not reimbursed in full in accordance with this Section 2.18(g), the Reimbursement Obligation shall accrue interest at a rate per annum equal to the Prime Rate, payable on demand.
(h) The Borrower's obligation (a "Reimbursement Obligation") under Section 2.18(g) to reimburse the Lenders with respect to each drawing under each Letter of Credit does not accept (including interest thereon), and each Lender's obligation to fund each drawing, shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which any Person constituting the proposed amendment Borrower or any Lender may have or have had against any Lender or any beneficiary of a Letter of Credit, including, without limitation, any defense based upon the occurrence of any Default or Event of Default, any draft, demand or certificate or other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient, or any failure to apply or misapplication by the beneficiary of the proceeds of any disbursement, or the legality, validity, form, regularity, or enforceability of such Letter of Credit.
(hi) The Borrower assumes all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. Except to the extent of its own gross negligence or wilful misconduct, the Issuer shall act on behalf not be responsible for:
(1) 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 application for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(2) 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 any acts taken transfer or omissions suffered by the assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof in whole or in part;
(3) failure of the beneficiary to comply fully with conditions required in order to demand payment under a Letter of Credit;
(4) errors, omissions, interruptions or delays in transmission or delivery of any information or messages, by mail, cable, telegraph, telex or otherwise;
(5) any loss or delay in the transmission or otherwise of any document or draft required in order to make a disbursement under a Letter of Credit or of the proceeds thereof;
(6) errors in interpretation of technical terms;
(7) any misapplication by a beneficiary of the proceeds of any disbursement under any Letter of Credit; and
(8) any consequences arising from causes beyond the control of the Issuer including, without limitation, acts of any Governmental Authority. None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers granted to the Issuer hereunder.
(j) In addition to amounts payable as elsewhere provided in connection with this Section 2.18, the Borrower hereby agrees to protect, indemnify, pay and save the Issuer harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys' fees) which the Issuer may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of the Letters of Credit issued Credit, other than as a result of the gross negligence or wilful misconduct of the Issuer as determined by it a court of proper jurisdiction, or proposed (ii) the failure of the Issuer to be issued by it and Issuer Documents pertaining to such Letters honor a drawing under any Letter of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter a result of Credit Issuer with respect to such acts any act or omissionsomission, and (B) as additionally provided herein with respect to the Letter whether rightful or wrongful, of Credit Issuerany present or future de jure or de facto Governmental -------- Authority.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Guest Supply 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 from the Original Closing Date and through the day that is thirty (30) 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 E hereto (a “Letter of Credit Request”) to the Issuing Lender, or amend or extend such Letter of Letters of Credit, provided that (i) no Default or Event of Default shall have occurred and be continuing or would arise as a result thereof, (ii) upon issuance of such Letter of Credit, the Letter of Credit Issuer agreesLiabilities shall not exceed $50,000,000.00, (iii) in reliance upon no event shall the agreements sum of (A) the Outstanding Revolving Credit Loans and Swing Loans and (B) the aggregate amount of Letter of Credit Liabilities (after giving effect to all Letters of Credit requested) exceed the Total Commitment, exceed the Borrowing Base Availability, or cause a violation of the Revolving Credit Lenders covenants set forth in this Section 3§9.1, §9.2 or §9.3, (iv) the conditions set forth in §§10 and 11 shall have been satisfied, (v) in no event shall any amount drawn under a Letter of Credit be available for reinstatement or a subsequent drawing under such Letter of Credit; and (vi) unless agreed to issue from time to time from by the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit ofIssuing Lender, the Borrower shall not request and the Restricted SubsidiariesIssuing Lender shall not be required to issue, a letter Letter of credit Credit with a face amount of less than $100,000.00. Notwithstanding anything to the contrary contained in this §2.10, the Issuing Lender shall not be obligated to issue, amend, extend, renew or letters increase any Letter of credit (Credit at a time when any other Lender is a Defaulting Lender, unless the “Issuing Lender is satisfied that the participation therein will otherwise be fully allocated to the Lenders that are Non-Defaulting Lenders consistent with §2.13(c) and the Defaulting Lender shall have no participation therein, except to the extent the Issuing Lender has entered into arrangements with the Borrower or such Defaulting Lender which are satisfactory to the Issuing Lender in its good faith determination to eliminate the Issuing Lender’s Fronting Exposure with respect to any such Defaulting Lender, including the delivery of cash collateral. The Issuing Lender may assume that the conditions in §10 and §11 have been satisfied unless it receives written notice from a Lender that such conditions have not been satisfied. Each Letter of Credit Request shall be executed by an Authorized Officer of the Borrower. The Issuing Lender shall be entitled to conclusively rely on such Person’s authority to request a Letter of Credit on behalf of the Borrower. The Issuing Lender shall have no duty to verify the authenticity of any signature appearing on a Letter of Credit Request. The Borrower assumes all risks with respect to the use of the Letters of Credit” . Unless the Issuing Lender and eachthe Required 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 and ending on the date which is thirty (30) days prior to the Maturity Date (but in its reasonable discretion; provided that any event the Borrower term shall be a co-applicantnot extend beyond the Maturity Date). Notwithstanding the foregoing, and jointly and severally liable with respect to, each in no event may the expiration date of any Letter of Credit issued extend beyond the earlier of (i) the date one year from its date of issuance or (ii) the Maturity Date; provided, however, a Letter of Credit may contain a provision providing for the account automatic extension of the expiration date in the absence of a Restricted Subsidiarynotice of non-renewal from the Agent but in no event shall any such provision permit the extension of the expiration date of such Letter of Credit beyond the Maturity Date; provided further, that a Letter of Credit may, as a result of its express terms or as the result of the effect of an automatic extension provision, have an expiration of not more than one year beyond the Maturity Date so long as the Borrower delivers to the Agent no later than 30 days prior to the Maturity Date cash collateral for such Letter of Credit for deposit into the Collateral Account in an amount equal to the maximum amount available to be drawn under such Letter of Credit. The amount available to be drawn under any Letter of Credit shall reduce on a dollar-for-dollar basis the amount available to be drawn under the Total Commitment as a Loan. The Issuing Lender shall promptly notify the Lenders of the issuance of any Letter of Credit, including the amount thereof. The Existing Letters of Credit shall upon the Closing Date be deemed to be Letters of Credit under this Agreement.
(b) Notwithstanding Each Letter of Credit Request shall be submitted to the foregoing, 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) no a statement as to the purpose for which such Letter of Credit shall be issued used (which purpose shall be in accordance with the Stated Amount terms of whichthis Agreement), when added and (ii) a certification by an Authorized Officer that the Borrower and Guarantors are and will be in compliance with all covenants under the Loan Documents after giving effect to the Letters issuance of Credit Outstanding at such timeLetter 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, would exceed 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 Commitment then in effect; on or before five (ii5) subject Business Days following receipt of the documents last due pursuant to clause (f) below, no §2.10(b). Each Letter of Credit shall be issued in form and substance reasonably satisfactory to the Stated Amount Issuing Lender and Borrower in their reasonable discretion.
(d) Upon the issuance of which would cause a Letter of Credit, each Lender shall be deemed to have purchased a participation therein from Issuing Lender in an amount equal to its respective Commitment Percentage of 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 such Letter of Credit Credit. No Lender’s obligation to participate 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 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 affected by any applicable law for the beneficiary of the Letter of Credit other Lender’s failure 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 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 hereunderfee calculated at the rate of 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 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 which fee shall not be less than $100,000 or 1,500 in any event), and (ii) for the Dollar Equivalent thereof, accounts of the 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 of a standby Applicable Margin then applicable to LIBOR Rate Loans on the amount available to be drawn under such Letter of Credit;
(iv. Such fees under §2.10(e)(ii) such 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 fiscal 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 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 Issuing Lender for its own account within five (5) days of demand of Issuing Lender the standard issuance date of such requested Letter and documentation charges for Letters 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 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 Letter Upon receipt from the beneficiary of Credit Issuer shall not amend any Letter of Credit if of any notice of a drawing under such Letter of Credit, Issuing Lender shall promptly notify the Borrower thereof. In the event that any amount is drawn under a Letter of Credit Issuer would not by the beneficiary thereof, the Borrower shall reimburse the Issuing Lender by having such amount drawn treated as an outstanding Base Rate Loan under this Agreement (the Borrower being deemed to have requested a Base Rate Loan on such date in an amount equal to the amount of such drawing and such amount drawn shall be permitted at treated as an outstanding Base Rate Loan under this Agreement) and the Agent shall promptly notify Borrower and each Lender by telex, telecopy, telegram, telephone (confirmed in writing) or other similar means of transmission, and each Lender shall promptly and unconditionally pay to the Agent, for the Issuing Lender’s own account, an amount equal to such time to issue Lender’s Commitment Percentage of such Letter of Credit (to the extent of the amount drawn). If and to the extent any Lender shall not make such amount available on the Business Day on which such draw is funded, such Lender agrees to pay such amount to the Agent forthwith on demand, together with interest thereon, for each day from the date on which such draw was funded until the date on which such amount is paid to the Agent, at the Federal Funds Effective Rate plus one percent (1.0%). Further, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its 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 any Letter of Credit or any document submitted by any party in connection with the issuance of any Letter of Credit, even if such document should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the form, validity, sufficiency, accuracy, genuineness or legal effect of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of any beneficiary of any Letter of Credit to comply fully with the conditions required in order to demand payment under a Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document or draft required by or from a beneficiary in order to make a disbursement under a Letter of Credit or the proceeds thereof; (vii) for the misapplication by the beneficiary of any Letter of Credit of the Revolving Credit 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 with respect 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 Letters resulting liability to the Borrower; provided nothing contained herein shall relieve Issuing Lender for liability to the Borrower arising as a result of Credit issued the gross negligence or willful misconduct of Issuing Lender as determined by it and a court of competent jurisdiction after the documents associated therewith and exhaustion of all applicable appeal periods.
(k) Upon demand by the Agent or the Issuing Lender at any time while a Lender is a Defaulting Lender, the Borrower shall deliver to the Agent for the benefit of the Issuing Lender within one (1) Business Day of such demand, cash collateral or other credit support satisfactory to the Issuing Lender in its sole discretion in an amount equal to such Defaulting Lender’s Commitment Percentage of the aggregate principal amount of 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 IssuerLiabilities then outstanding.
Appears in 1 contract
Samples: Credit Agreement (Mid America Apartment Communities 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[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; (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 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 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 1 contract
Samples: Credit Agreement (RBC Bearings INC)
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(c) 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 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 whichTwo Hundred Fifty Thousand Dollars ($250,000).
(c) The Letter of Credit Usage shall be no more than Two Hundred Million Dollars ($200,000,000) at any one time.
(d) No Letter of Credit shall be issued, when added if, after giving effect to the issuance thereof, the sum of the Tranche A Loans, the Letter of Credit Usage and the Money Market Loans then outstanding would exceed the aggregate Tranche A Loan Commitments then in effect.
(e) There shall be no more than forty (40) Letters of Credit outstanding at any one time.
(f) In the event of any request for a drawing under any Letter of Credit by the beneficiary thereunder, the Fronting Bank shall endeavor to 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 (f), 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 the 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 the 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 Committed Borrowing pursuant to Section 2.2 to the Administrative Agent, requesting a Borrowing of Tranche A Loans as Base Rate Loans on the date on which such drawing is honored and in an amount equal to the amount of such drawing. If the Borrower shall so notify the Administrative Agent and the Fronting Bank that the Borrower intends to reimburse the Fronting Bank for the amount of such drawing with funds other than the proceeds of the Loans, and the Borrower shall fail to so reimburse the Fronting Bank, then the Borrower shall be deemed to have timely given a Notice of Committed Borrowing pursuant to Section 2.2 to the Administrative Agent, requesting a Borrowing of Tranche A Loans as Base Rate Loans on the date immediately succeeding the date on which the Borrower should have reimbursed the Fronting Bank. Each Tranche A 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 Tranche A 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 Tranche A Bank together with interest at the Federal Funds Rate commencing on the date such drawing is honored.
(g) 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 (i) 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 (ii) 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 or any participation therein and the result of any event referred to in the preceding clause (i) or (ii) shall be to increase, by an amount reasonably deemed by the Fronting Bank or such timeBank to be material, would exceed the cost to the Fronting Bank or any Bank of issuing or maintaining any Letter of Credit Commitment 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. The certificate required to be delivered pursuant to this Section 2.16(g) shall, absent manifest error, be final and conclusive and binding on the Borrower.
(h) 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, other than as a result of the gross negligence or wilful misconduct of the Fronting Bank or (ii) the failure of the Fronting Bank to honor a drawing under any Letter of Credit 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 issued by the Fronting Bank, by the beneficiaries of such Letters of Credit. 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, even if it should in fact prove to be in any or 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 or 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 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 comply fully with conditions required in order to enjoin or restrain the Letter of Credit Issuer from issuing draw upon such Letter of Credit; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any message, by mail, cable, telegraph, telex, facsimile transmission, or otherwise; (v) for errors in interpretation of any law applicable technical terms; (vi) for any loss or delay in the transmission or otherwise of any documents required in order to the Letter of Credit Issuer or make a drawing under 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 of the Letter proceeds thereof; (vii) for the misapplication by the beneficiary of Credit Issuer with respect to any such Letter of Credit any restriction, reserve or capital requirement (for which of 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 proceeds of such Letter of Credit would violate one or more policies Credit; and (viii) for any consequence arising from causes beyond the control 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 IssuerFronting Bank, 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 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 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 case other than as a result 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 gross negligence or willful misconduct of the benefits Fronting Bank. None of the above shall affect, impair or prevent the vesting of the Fronting Bank's rights and immunities (A) provided to powers hereunder. In furtherance and extension and not in limitation of the Administrative Agent in Section 13 with respect to specific provisions hereinabove set forth, any acts action taken or omissions suffered omitted by the Letter of Credit Issuer Fronting Bank under or in connection with the Letters of Credit issued by it or proposed the related certificates, if taken or omitted in good faith, shall not put the Fronting Bank under any resulting liability to be issued the Borrower.
(i) 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 it and Issuer Documents pertaining the Borrower of any drawing under any Letter of Credit, each Bank shall pay to such Letters of Credit as fully as if the term “Fronting Bank or the Administrative Agent” , as used the case may be, its share of such payment, but without interest thereon unless the Fronting Bank or the Administrative Agent is required to pay interest on such amounts to the person recovering such payment, in Section 13 included which case with interest thereon, computed at 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 1 contract
Samples: Credit Agreement (Meditrust Corp)
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 terms and conditions contained herein, such Fronting Bank shall issue, for the account of the Borrower one or more Letters of Credit, provided that no Letter of Credit Issuer agreesshall be issued if after giving effect to such issuance (i) the aggregate Letter of Credit Outstandings shall exceed $10,000,000 or (ii) the aggregate Letter of Credit Outstandings, in reliance upon when added to the agreements aggregate outstanding principal amount of the Revolving Credit Lenders set forth in this Section 3Loans, to issue would exceed the least of (x) the Total Commitment, as the same may be reduced from time to time pursuant to Sections 2.10 and 2.13, (y) from and after the Original Closing Date through execution and delivery of the L/C Maturity Date upon the request of, and for the direct or indirect benefit ofBorrowing Base Amendment, the Borrower Borrowing Base and (z) the Restricted Subsidiariesamount permitted to be outstanding hereunder pursuant to the Interim Order or the Final Order, a letter of credit or letters of credit (the “Letters of Credit” and eachas applicable, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; and, provided further 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 if the Stated Amount Fronting Bank shall have received notice from the Agent or the Required Lenders that the conditions to such issuance hereunder have not been met and (ii) no standby letter of which, when added to credit shall be issued without the Letters consent of Credit Outstanding at such time, would exceed the Agent.
(b) No Letter of Credit Commitment then in effect; (ii) subject to clause (f) belowshall expire later than the Maturity Date, no provided that if any Letter of Credit shall be outstanding on the Termination Date, the Borrower shall, at or prior to the Termination Date, except as the Agent may otherwise agree in writing, (i) cause all Letters of Credit 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, either (x) provide a "back-to-back" letter of credit to one or more Fronting Banks in a form satisfactory to such Fronting Bank and the Agent (in their sole discretion), issued by a bank satisfactory to such Fronting Bank and the Stated Amount Agent (in their sole discretion), and in an amount equal to 102% of which would cause the aggregate then undrawn 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 all outstanding Letters of Credit issued by such Fronting Banks (less the amount, if any, then on deposit 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 IssuerAccount) and/or (y) deposit cash in the Letter of Credit Account in an amount equal to 102% of the then undrawn stated amount of all Letter of Credit Outstandings (less the amount, provided if any, then on deposit in the Letter of Credit Account) as collateral security for the Borrower's reimbursement obligations in connection therewith, such cash to be promptly remitted to the Borrower upon the expiration, cancellation or other termination or satisfaction of such reimbursement obligations; provided, further, that the Letters of Credit may be deemed to be outstanding letters of credit under any facility that refinances or replaces this Agreement and that in no the event the Letters of Credit are so deemed, the requirements of the immediately preceding proviso shall not apply to such expiration date occur later than Letters of Credit on the L/C Maturity Termination Date; .
(vc) The Borrower shall pay to each Fronting Bank, in addition to such other fees and charges as are specifically provided for in Section 2.21 hereof, such fees and charges in connection with the issuance and processing of the Letters of Credit issued by such Fronting Bank as are customarily imposed by such Fronting Bank from time to time in connection with letter of credit transactions.
(d) Drafts drawn under each Letter of Credit shall be denominated reimbursed by the Borrower in Dollars or an Alternative Currency; 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 2.50% and thereafter on the unreimbursed portion until reimbursed in full at a rate per annum equal to the Alternate Base Rate plus 4.50% (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for computed on the beneficiary basis of the Letter actual number of Credit to have days elapsed over a Letter year of Credit issued 365 days or 366 days in its favor; and (vii) no Letter of Credit a leap year). The Borrower 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 effect such time as the Letter of Credit Issuer shall have received a written notice of reimbursement (x) rescission if such draw occurs prior to the Termination Date, in cash or through a Borrowing without the satisfaction of such notice from the party or parties originally delivering such notice conditions precedent set forth in Section 4.2 or (y) if such draw occurs on or after the waiver Termination Date, in cash. Each Lender agrees to make the Loans described in clause (x) of such Default the preceding sentence notwithstanding a failure to satisfy the applicable lending conditions thereto or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day’s prior written notice (Sections 2.2 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]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 10.3, 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 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, 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.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and conditions herein set forthof this Agreement and upon (i) the execution by the Borrower and the Bank of a Master Letter of Credit Agreement in form and substance acceptable to the Bank (together with all amendments, at any time modifications and restatements thereof, the “Master Letter of Credit Agreement”), and (ii) the execution and delivery by the Borrower and the acceptance by the Bank in its reasonable discretion of a Letter of Credit Application in the Bank’s customary form, the Bank agrees to issue for the account of the Borrower such Letters of Credit in the standard form of the Bank and otherwise in form and substance reasonably acceptable to the Bank, from time to time after during the Original Closing Date and prior to the L/C Maturity Dateterm of this Agreement, provided that (i) 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 Obligations may not at any 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.
, (dii) [Reserved].
(e) The Letter after giving effect to the requested 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 Letter of Credit, the sum of the outstanding Revolving Loans (after giving effect to any requested but unadvanced Revolving Loan) plus the Letter of Credit Obligations (after giving effect to any requested but unissued Letters of Credit) would not exceed the Revolving Loan Available Amount, and (iii) the expiry of any Letter of Credit may not be a date that is twelve months beyond the Letter of Credit Maturity Date. The amount of any payments made by the Bank with respect to draws made by a beneficiary under a Letter of Credit for which the Borrower has failed to reimburse the Bank within one (1) Business Day after the date of such payment to such beneficiary by the Bank, shall be deemed to have been converted to a Revolving Loan as of the date such payment was made by the Bank to such beneficiary. Upon the occurrence of an Event of Default and at the option of the Bank, all Letter of Credit Obligations shall be converted to Revolving Loans consisting of Prime Loans, all without demand, presentment, protest or notice of any law applicable kind, all of which are hereby waived by the Borrower. To the extent the provisions of the Master Letter of Credit Agreement are inconsistent with, the terms of this Agreement, the provisions of this Agreement shall govern. If any Letter of Credit shall have a stated expiry date beyond the Letter of Credit Maturity Date (to the extent otherwise permitted herein), then no later than ten (10) days prior to the Letter of Credit Issuer or any request or directive Maturity Date (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 fromincluding if such date is accelerated as provided herein), the issuance Borrower shall provide cash collateral to the Bank 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 all then-outstanding Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all at 105% of the benefits and immunities (A) provided aggregate undrawn face amount thereof to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered be held by the Letter of Credit Issuer Bank in connection accordance 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 Issuerthis Agreement.
Appears in 1 contract
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, its Subsidiaries and Dynegy Inc. but may not, in any event, be issued to fund or support any interest rate, currency, commodity or other hedging agreements or other derivative obligations of the Account Party, any of its Subsidiaries or Dynegy Inc.
(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 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 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, (i) the then current 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 Exposure would exceed the L/C Maturity Date upon Sublimit or (ii) the request ofsum of the then current L/C Exposure, plus the aggregate principal amount of the Loans then outstanding, would exceed the lesser of the then current amount of the Maximum Allowable Outstanding Amount or the Total Commitments, 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 Commitment Termination Date or pursuant to which drafts drawn thereunder would be payable later than five Business Days prior to the Commitment Termination Date or (y) more than one year after 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 Subsidiaryissuance (or extension).
(b) Notwithstanding Immediately upon the foregoing, (i) no issuance of each Letter of Credit 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 Issuing Bank 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.
(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 of the International Chamber of Commerce No. 500, as adopted or amended from time to time. The Issuing Bank shall be entitled to honor any drafts and accept any documents presented to it by the beneficiary of such Letter of Credit in accordance with the terms of such Letter of Credit and believed by the Issuing Bank in good faith to be genuine. The Issuing Bank shall not accept have any duty to inquire as to the proposed amendment accuracy or authenticity of any draft or other drawing documents which may be presented to such 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 Revolving 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 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 2.15(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 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). 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 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 2.4.
(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 for the period from and including the date of issuance of such Letter of Credit to but excluding the Maturity Date, computed at a rate equal to 1/4 of 1% per annum of the benefits daily average L/C Exposure, such fee to be due and immunities payable in arrears on and through the last Business Day of each calendar quarter, prior to the Maturity Date, on the Maturity Date and on the expiration of the last outstanding Letter of Credit.
(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 (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 Maturity Date, on the Maturity Date and on the expiration of the last outstanding Letter of Credit.
(iii) Promptly upon receipt by the Issuing Bank or the Administrative Agent, as applicable, of any amount described in clause (ii) of this Section 2.15(h), or any amount described in Section 13 with respect 2.15(h) 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 2.15(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 Maximum Allowable Outstanding Amount, 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 2.9(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 Agreement (Idt 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 thirty (30) 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 E hereto (a “Letter of Credit Request”) to the Issuing Lender, or amend or extend such Letter of Letters of Credit, provided that (i) no Default or Event of Default shall have occurred and be continuing or would arise as a result thereof, (ii) upon issuance of such Letter of Credit, the Letter of Credit Issuer agreesLiabilities shall not exceed $35,000,000.00, (iii) in reliance upon no event shall the agreements sum of (A) the Outstanding Revolving Credit Loans and Swing Loans and (B) the aggregate amount of Letter of Credit Liabilities (after giving effect to all Letters of Credit requested) exceed the Total Commitment, exceed the Borrowing Base Availability, or cause a violation of the Revolving Credit Lenders covenants set forth in this Section 3§9.1, §9.2 or §9.3, (iv) the conditions set forth in §§10 and 11 shall have been satisfied, (v) in no event shall any amount drawn under a Letter of Credit be available for reinstatement or a subsequent drawing under such Letter of Credit; and (vi) unless agreed to issue from time to time from by the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit ofIssuing Lender, the Borrower shall not request and the Restricted SubsidiariesIssuing Lender shall not be required to issue, a letter Letter of credit Credit with a face amount of less than $100,000.00. Notwithstanding anything to the contrary contained in this §2.10, the Issuing Lender shall not be obligated to issue, amend, extend, renew or letters increase any Letter of credit (Credit at a time when any other Lender is a Defaulting Lender, unless the “Issuing Lender is satisfied that the participation therein will otherwise be fully allocated to the Lenders that are Non-Defaulting Lenders consistent with §2.13(c) and the Defaulting Lender shall have no participation therein, except to the extent the Issuing Lender has entered into arrangements with the Borrower or such Defaulting Lender which are satisfactory to the Issuing Lender in its good faith determination to eliminate the Issuing Lender’s Fronting Exposure with respect to any such Defaulting Lender, including the delivery of cash collateral. The Issuing Lender may assume that the conditions in §10 and §11 have been satisfied unless it receives written notice from a Lender that such conditions have not been satisfied. Each Letter of Credit Request shall be executed by an Authorized Officer of the Borrower. The Issuing Lender shall be entitled to conclusively rely on such Person’s authority to request a Letter of Credit on behalf of the Borrower. The Issuing Lender shall have no duty to verify the authenticity of any signature appearing on a Letter of Credit Request. The Borrower assumes all risks with respect to the use of the Letters of Credit” . Unless the Issuing Lender and eachthe Required 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 and ending on the date which is thirty (30) days prior to the Maturity Date (but in any event the term shall not extend beyond the Maturity Date). Notwithstanding the foregoing, in no event may the expiration date of any Letter of Credit extend beyond the earlier of (i) the date one year from its reasonable discretiondate of issuance or (ii) the Maturity Date; provided, however, 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 Agent but in no event shall any such provision permit the extension of the expiration date of such Letter of Credit beyond the Maturity Date; provided further, that a Letter of Credit may, as a result of its express terms or as the result of the effect of an automatic extension provision, have an expiration of not more than one year beyond the Maturity Date so long as the Borrower delivers to the Agent no later than 30 days prior to the Maturity Date cash collateral for such Letter of Credit for deposit into the Collateral Account in an amount equal to the maximum amount available to be drawn under such Letter of Credit. The amount available to be drawn under any Letter of Credit shall reduce on a dollar-for-dollar basis the amount available to be drawn under the Total Commitment as a Loan. The Issuing Lender shall promptly notify the Lenders of the issuance of any Letter of Credit, including the amount thereof. The Existing Letters of Credit shall upon the Closing Date be deemed to be Letters of Credit under this Agreement; provided that the Borrower shall be a co-applicant, and jointly and severally liable promptly replace the Existing Letters of Credit with respect to, each Letter Letters of Credit issued for by KeyBank as the account Issuing Lender. The parties acknowledge that the Existing Letters of a Restricted SubsidiaryCredit cannot be canceled until the original Existing Letters of Credit are returned to Regions Bank, as the Issuing Lender, by the beneficiaries thereof.
(b) Notwithstanding Each Letter of Credit Request shall be submitted to the foregoing, 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) no a statement as to the purpose for which such Letter of Credit shall be issued used (which purpose shall be in accordance with the Stated Amount terms of whichthis Agreement), when added and (ii) a certification by an Authorized Officer that the Borrower and Guarantors are and will be in compliance with all covenants under the Loan Documents after giving effect to the Letters issuance of Credit Outstanding at such timeLetter 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, would exceed 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 Commitment then in effect; on or before five (ii5) subject Business Days following receipt of the documents last due pursuant to clause (f) below, no §2.10(b). Each Letter of Credit shall be issued in form and substance reasonably satisfactory to the Stated Amount Issuing Lender and Borrower in their reasonable discretion.
(d) Upon the issuance of which would cause a Letter of Credit, each Lender shall be deemed to have purchased a participation therein from Issuing Lender in an amount equal to its respective Commitment Percentage of 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 such Letter of Credit Credit. No Lender’s obligation to participate 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 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 affected by any applicable law for the beneficiary of the Letter of Credit other Lender’s failure 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 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 hereunderfee calculated at the rate of 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 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 which fee shall not be less than $100,000 or 1,500 in any event), and (ii) for the Dollar Equivalent thereof, accounts of the 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 of a standby Applicable Margin then applicable to LIBOR Rate Loans on the amount available to be drawn under such Letter of Credit;
(iv. Such fees under §2.10(e)(ii) such 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 fiscal 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 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 Issuing Lender for its own account within five (5) days of demand of Issuing Lender the standard issuance date of such requested Letter and documentation charges for Letters 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 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 Letter Upon receipt from the beneficiary of Credit Issuer shall not amend any Letter of Credit if of any notice of a drawing under such Letter of Credit, Issuing Lender shall promptly notify the Borrower thereof. In the event that any amount is drawn under a Letter of Credit Issuer would not by the beneficiary thereof, the Borrower shall reimburse the Issuing Lender by having such amount drawn treated as an outstanding Base Rate Loan under this Agreement (the Borrower being deemed to have requested a Base Rate Loan on such date in an amount equal to the amount of such drawing and such amount drawn shall be permitted at treated as an outstanding Base Rate Loan under this Agreement) and the Agent shall promptly notify Borrower and each Lender by telex, telecopy, telegram, telephone (confirmed in writing) or other similar means of transmission, and each Lender shall promptly and unconditionally pay to the Agent, for the Issuing Lender’s own account, an amount equal to such time to issue Lender’s Commitment Percentage of such Letter of Credit (to the extent of the amount drawn). If and to the extent any Lender shall not make such amount available on the Business Day on which such draw is funded, such Lender agrees to pay such amount to the Agent forthwith on demand, together with interest thereon, for each day from the date on which such draw was funded until the date on which such amount is paid to the Agent, at the Federal Funds Effective Rate plus one percent (1.0%). Further, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its 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 any Letter of Credit or any document submitted by any party in connection with the issuance of any Letter of Credit, even if such document should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the form, validity, sufficiency, accuracy, genuineness or legal effect of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of any beneficiary of any Letter of Credit to comply fully with the conditions required in order to demand payment under a Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document or draft required by or from a beneficiary in order to make a disbursement under a Letter of Credit or the proceeds thereof; (vii) for the misapplication by the beneficiary of any Letter of Credit of the Revolving Credit 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 with respect 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 Letters resulting liability to the Borrower; provided nothing contained herein shall relieve Issuing Lender for liability to the Borrower arising as a result of Credit issued the gross negligence or willful misconduct of Issuing Lender as determined by it and a court of competent jurisdiction after the documents associated therewith and exhaustion of all applicable appeal periods.
(k) Upon demand by the Agent or the Issuing Lender at any time while a Lender is a Defaulting Lender, the Borrower shall deliver to the Agent for the benefit of the Issuing Lender within one (1) Business Day of such demand, cash collateral or other credit support satisfactory to the Issuing Lender in its sole discretion in an amount equal to such Defaulting Lender’s Commitment Percentage of the aggregate principal amount of 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 IssuerLiabilities then outstanding.
Appears in 1 contract
Samples: Credit Agreement (Mid America Apartment Communities 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 forthAt Borrower's written request, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter Issuing Bank shall issue Letters of Credit Issuer agrees, for Borrower's account. Each Bank severally agrees to participate 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 accordance with 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 SubsidiaryBank's Percentage Share.
(b) Notwithstanding Issuing Bank shall issue the foregoingLetter of Credit upon receipt of a Borrower's written request and Issuing Bank's standard form of application, stating (ia) no the date such Borrower wishes to receive the Letter of Credit (which shall be a Business Day); (b) the requested amount of such Letter of Credit; (c) the aggregate amount of all Advances and Letters of Credit then outstanding; (d) if appropriate, the conditions requested by Borrower under which the Letter of Credit may be drawn upon; and (e) any other information Issuing Bank might need to issue the Letter of Credit. Issuing Bank shall promptly notify the other Bank upon receipt of a request for a Letter of Credit.
(c) The maximum aggregate obligation at any one time for undrawn and drawn but unreimbursed Letters of Credit shall not exceed the Committed Line minus the outstanding amount of the Foreign Exchange Reserve minus any amounts owed from Borrower to Bank pursuant to Cash Management Services, provided that the aggregate face amount of outstanding Letters of Credit (including drawn but unreimbursed Letters of Credit) shall not in any case exceed Two Million Dollars ($2,000,000). Each Letter of Credit shall be issued the Stated Amount of which, when added pursuant to the Letters terms and conditions of Credit Outstanding at such time, would exceed this Agreement and of the Letter Issuing Bank's standard form of Credit Commitment then in effect; (ii) subject to clause (f) below, no application and security agreement for letters of credit. Each Letter of Credit shall (a) expire no later than the Maturity Date, and (b) 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 otherwise in form and substance satisfactory to exceed the Total Revolving Credit Commitment then in effect; (iii) no Issuing Bank, provided that a Letter of Credit may expire after the Maturity Date for so long as Borrower's reimbursement obligation in an Alternative Currency connection therewith is secured by cash on terms acceptable to Banks. Upon issuing a Letter of Credit, the Issuing Bank shall be issued immediately notify the Stated Amount other Bank of which would cause such issuance and shall, on a continuing basis, keep the Aggregate Multicurrency Exposures at the time other Bank informed of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) drawn and undrawn but unreimbursed amount of 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 for so long as such Letter of Credit Issueris outstanding. With respect to standby Letters of Credit, provided that in no event Borrower shall such expiration date occur later than pay to Issuing Bank a nonrefundable issuance fee of at least one and one-half percent (1 1/2%) of 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 face amount of the Letter of Credit to have a at the time Borrower requests the Letter of Credit issued in its favor; and Credit. The Issuing Bank shall retain a fee equal to one-eighth of one percent (vii0.125%) no of the face amount of the Letter of Credit Credit, and shall be issued by share the balance of such issuance fee equally with the other Bank. With respect to commercial Letters of Credit, Borrower shall pay to Issuing Bank a Letter nonrefundable issuance fee equal to one-eighth of Credit Issuer after it has received a written notice from any Credit Party or one percent (0.125%) of the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event face amount 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 at 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 time Borrower requests the Letter of Credit Issuer and a negotiation fee equal to one-eighth of one percent (which 0.125%) of the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce face amount of the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, at the Letters of Credit Outstanding shall not exceed time a draw is made on the Letter of Credit CommitmentCredit. The Issuing Bank shall retain an issuance fee of One Hundred Dollars ($100) and a negotiation fee of One Hundred Dollar ($100), and shall share the balance of such issuing fee and negotiation fee equally with the other Bank. On the day on which Issuing Bank honors any drawing made by the beneficiary of a Letter of Credit, Borrower shall pay to Issuing Bank the full amount of the drawing so honored, or at Borrower's option, shall treat the amount of such drawing as an Advance under Section 2.1. The obligation to reimburse Issuing Bank for the amount of such drawing is absolute, unconditional, and irrevocable.
(d) [Reserved].
(e) The Borrower may request that Issuing Bank issue a Letter of Credit Issuer shall not be payable in a currency other than United States Dollars. If a demand for payment is made 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 Issuing Bank shall treat such demand as an Advance to Borrower of the Equivalent Amount thereof. Upon the issuance of 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 payable in a currency other than Dollars or an Alternative Currency;
(v) United States Dollars, Banks shall create a reserve under the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue Committed Line for letters of credit against fluctuations in currency exchange rates, in an amount equal to twenty percent (20%) of the face amount of such Letter of Credit. The amount of such reserve may be amended by Banks from time to time to account for fluctuations in the requested currency;
(vi) exchange rate. The availability of funds under the Committed Line shall be reduced by the amount of such reserve for so long as 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 Lenderremains outstanding.
(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, 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 forthhereof, and provided no Default has occurred and that the Bank is then generally issuing letters of credit for its banking customers, the Bank shall at any time and from time to time after during the Original Closing Date and prior to the L/C Maturity DateAvailability Period, 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 Subsidiariespursuant to paragraph (b) below, a letter of credit issue or letters of credit (the “renew 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, in form reasonably satisfactory to the Bank, provided that (i) no the issuance or renewal of any such Letter of Credit shall would be issued the Stated Amount of whichpermitted by Section 2.01, 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 the issuance or renewal of any such termination or reductionLetter of Credit, (A) the Letters Total Exposure shall not exceed the Commitment, and (B) the outstanding Letter of Credit Outstanding Obligations shall not exceed the Letter of Credit CommitmentSublimit, (iii) the expiry date of any Letter of Credit (as originally issued or after renewal) shall not be later than six (6) months after the Maturity Date (provided, however, that on or prior to the Maturity Date, the Borrower shall provide the Bank with cash collateral with respect to each Letter of Credit with an expiry date after the Maturity Date as if Section 2.15(g) applied at such time, and such cash collateral shall be held and applied in the same manner as contemplated by Section 2.15(g)); (iv) the face amount of any Letter of Credit shall be not less than $100,000; and (v) issuance or renewal of any Letter of Credit that will be used as support for a credit facility of a Portfolio Company will be subject to the approval of the Bank in its sole discretion.
(b) The Borrower may request that the Bank issue a Letter of Credit by written notice (the "Letter of Credit Notice") given by the Borrower to the Bank not less than three (3) Business Days prior to the proposed date of issuance of such Letter of Credit. The Letter of Credit Notice shall (i) specify the proposed date of issuance, the beneficiary and amount of such Letter of Credit, and the proposed expiry date, (ii) be accompanied by a letter of credit application furnished by the Bank completed to the Bank's satisfaction (the terms of which application, to the extent not inconsistent with this Agreement, shall apply to the Letter of Credit in addition to the terms of this Agreement), (iii) specify the proposed use of the requested Letter of Credit including the Portfolio Investment to be made with the proceeds thereof, and (iv) include a Compliance Certificate dated as of the date of the request for the proposed Letter of Credit. The Borrower may request a renewal of a Letter of Credit by written notice given by the Borrower to the Bank not less than five (5) Business Days prior to the current expiry date of the Letter of Credit. The notice shall specify the proposed extended expiry date, describe the purpose of the renewal, and be accompanied by such additional documentation as the Bank may reasonably request and by a Compliance Certificate dated as of the date of the renewal request.
(c) The Borrower shall pay to the Bank a commission with respect to each Letter of Credit, at a rate of one percent (1%) per annum (calculated on the basis of a 360-day year for actual days elapsed) of the undrawn face amount of such Letter of Credit, computed from the date of issuance of such Letter of Credit until it is fully drawn or has expired or been cancelled. Such commissions shall be payable in arrears on the last Business Day of each month while such Letter of Credit is outstanding and upon its expiration or cancellation or the date it is fully drawn. The Borrower shall also pay or reimburse the Bank for all of the Bank's normal and customary charges, costs and expenses in connection with issuing, effecting payment under, amending, or otherwise administering any Letter of Credit, including, without limitation, the Bank's issuance and amendment fees in effect at such time.
(d) [Reserved]The Borrower hereby agrees to pay to the Bank on the date on which the Bank shall be required to pay any draft presented under any Letter of Credit, a sum (the "Reimbursement Amount") equal to the amount so paid under such Letter of Credit. The Borrower shall also pay to the Bank interest on any Reimbursement Amount remaining unpaid by the Borrower to the Bank from and including the date on which such amount becomes payable pursuant to the preceding sentence until payment in full, payable on demand, at a per annum rate equal to the rate applicable to ABR Loans. If the Borrower fails to pay to the Bank the Reimbursement Amount on the date on which the Bank shall be required to pay any draft presented under any Letter of Credit, the Bank shall, to the extent the Borrower would have the ability to request a Loan pursuant to Section 2.01, consider such failure of payment to be a request for a Loan in the amount of the unpaid Reimbursement Amount (which request shall be deemed a confirmation that the conditions set forth in Section 4.01 and 4.02 have been satisfied), and the Bank shall make such a Loan and apply the proceeds of such a Loan to reimburse the Bank for the Reimbursement Amount.
(e) The Letter Borrower's obligations to pay Reimbursement Amounts as provided in subsection (d) above shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of Credit Issuer shall not be this Agreement, under any obligation to issue any Letter of Credit ifand all circumstances whatsoever, and irrespective of:
(i) any order, judgment lack of validity or decree enforceability of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer or any Bank Agreement, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from issuing all or any of the provisions of any Letter of Credit or any Bank Agreement;
(iii) the existence of any claim, setoff, defense or other right that the Borrower, any other party guaranteeing, or otherwise obligated with, the Borrower, any Subsidiary or other Affiliate thereof, or any other person may at any time have against the beneficiary under any Letter of Credit, the Bank (other than the defense of payment in accordance with the terms of this Agreement) or any other person, whether in connection with this Agreement, any other Bank Agreement or any other related or unrelated agreement or transaction;
(iv) any 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;
(v) payment by the Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; provided that payment by the Bank shall not have constituted gross negligence or wilful misconduct of the Bank;
(vi) nonpayment by the Bank for any reason; and
(vii) any other act or omission to act or delay of any kind of the Bank or any other person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this subsection, constitute a legal or equitable discharge of the Borrower's or any other party's obligations hereunder.
(f) Without limiting the generality of subsection (e) above, it is expressly understood and agreed that the absolute and unconditional obligation of the Borrower hereunder to pay the Reimbursement Amount will not be excused by the gross negligence or willful misconduct of the Bank, except as expressly provided in subsection (e). However, nothing in this Agreement shall be construed to excuse the Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the Bank's gross negligence or willful misconduct in determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. It is understood that the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation in making any payment under any Letter of Credit and, except as otherwise expressly provided in subsection (e), (i) the Bank's exclusive reliance on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including reliance on the amount of any draft presented under such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be insufficient in any respect, if such document on its face appears to be in order, and whether or not any other statement or any law applicable other document presented pursuant to such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance in any immaterial respect of the documents presented under such Letter of Credit with the terms thereof, shall, in each case, be deemed not to constitute willful misconduct or gross negligence of the Bank.
(g) If any Event of Default shall occur and be continuing, then on the Business Day that the Borrower receives notice from the Bank demanding the deposit of cash collateral pursuant to this subsection, the Borrower shall deposit in an account with the Bank, in the name of the Bank and for the benefit of the Bank, an amount in cash equal to one hundred five percent (105%) to the Letter of Credit Issuer or any request or directive (whether or not having the force Obligations as of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request such date; provided that the Letter obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of Credit Issuer refrain fromany kind, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter occurrence of Credit Issuer with respect any Event of Default described in subsection (h) or (i) of Section 7.01. Such deposit shall be held by the Bank as collateral for the payment and performance of the obligations of the Borrower under the Bank Agreements. The Bank shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than interest earned on the investment of such deposits (which investments shall be selected by the Borrower and reasonably acceptable to the Bank and at the Borrower's risk and expense), such Letter of Credit any restrictiondeposits shall not bear interest. Interest or profits, reserve or capital requirement (if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Bank to Reimbursement Amounts for which it has not been reimbursed and, to the Letter of Credit Issuer is extent not otherwise compensated hereunder) not in effect on so applied, shall be held for 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 satisfaction of the Letter of Credit Issuer applicable Obligations from time to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent time 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 to satisfy other than Dollars or an Alternative Currency;
(v) the Letter of Credit Issuer does not as obligations 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 hereofBank Agreements.
(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 (Jefferies Capital Partners Iv Lp)
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) Sixty Million Dollars ($60,000,000) (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 Thirty Million Dollars ($30,000,000) 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 Thirty Million Dollars ($30,000,000) 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 SOFR 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 1 contract
Samples: Revolving Credit Agreement (Urban Edge Properties LP)
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 the Company’s request, the L/C Issuer shall issue, at any time before the Revolving Credit Termination Date, letters of credit (an “L/C” and collectively the “L/Cs”) for the account of the Company subject to availability under the Revolving Credit, and the Banks hereby agree to participate therein as more fully described in Section 1.8 hereof. Each L/C shall be issued pursuant to an application for L/C (collectively the “L/C Agreements” and individually an “L/C Agreement”) in a form that is mutually acceptable to the Company and the L/C Issuer, shall conform to the general requirements of the L/C Issuer for the issuance of L/Cs as to form and substance, shall be in U.S. Dollars and shall be an L/C which the L/C Issuer may lawfully issue. The L/Cs shall consist of standby and commercial L/Cs in an aggregate face amount not to exceed $30,000,000. Each L/C shall have an expiry date not later than the earlier of one (1) year from the date of issuance thereof or thirty (30) days prior to the Revolving Credit Termination Date, provided that annually renewable L/Cs may be issued with a final expiry date no later than thirty (30) days prior to the Revolving Credit Termination Date. The Company agrees that if on the Revolving Credit Termination Date any L/C remains outstanding the Company shall then deliver to the Agent, without notice or demand, Cash Collateral in an amount equal to the Minimum Collateral Amount of the aggregate amount of each L/C then outstanding (which shall be held by the Agent pursuant to the terms of Section 1.6(g) hereof). The amount available to be drawn under each L/C issued and outstanding pursuant hereto shall be deducted from the credit otherwise available under the Revolving Credit but shall not reduce the Revolving Credit Commitments of the Banks hereunder. In consideration of the issuance of L/Cs the Company agrees to pay the applicable L/C Issuer for the pro rata benefit of the Banks a fee (the “L/C Participation Fee”) in the amount of the rate per annum (computed on the basis of a 360 day year and actual days elapsed) equal to the Applicable Margin as in effect from time to time after for Eurodollar Loans of the Original Closing Date and prior to the undrawn amount for each standby 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 the Company hereunder, payable quarterly in arrears on the last day of each March, June, September and December commencing June 30, 2021, and on the Revolving Credit Termination Date. The Company shall also pay the L/C Issuers a Restricted Subsidiary.
(b) Notwithstanding fronting fee in 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 one-eighth of one percent (0.125%) of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter face amount of Credit in an Alternative Currency shall be each standby L/C 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 hereunder, payable on the date of issuance thereofof each such standby L/C hereunder and on the date of each extension, unless otherwise agreed upon by if any, of the Administrative Agent expiry date of each such standby L/C and the Letter of Credit relevant L/C Issuer’s usual and customary fees with respect to each trade L/C issued hereunder, provided that in no event payable upon negotiation thereof. In addition, the Company shall pay to the relevant L/C Issuer for its own account such expiration date occur later than L/C Issuer’s standard documentary and processing charges for L/Cs with respect to each L/C. Notwithstanding anything contained herein to the contrary, the L/C Maturity Date; (v) each Letter of Credit Issuer shall be denominated in Dollars or an Alternative Currency; (vi) under 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 issue, extend or amend 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) L/C if a default of any Revolving Credit LenderBank’s obligations to fund under Section 3.3 1.8 exists or any Revolving Credit Lender Bank is at such time a Defaulting Lender hereunder, unless, in each case, unless the Letter of Credit L/C Issuer has entered into satisfactory arrangements with the Borrower Company or such Revolving Credit Lender Bank satisfactory to the L/C Issuer to eliminate the Letter of Credit L/C Issuer’s risk with respect to such Bank.
(b) Upon satisfaction of all conditions precedent to the initial Loan hereunder, without any further action on the part of the Company, the Existing L/C Issuer, the Agent or any Bank, (i) each of the L/Cs (the “Existing L/Cs”) previously issued by the Existing L/C Issuer for the account of the Company under the Existing Agreement shall be deemed for all purposes of this Agreement to be an L/C issued hereunder, (ii) each application and agreement for an LC pursuant to which each Existing L/C was issued shall be deemed for all purposes of this Agreement to be an L/C Agreement, and (iii) all of the Company’s indebtedness, obligations and liabilities to the Existing L/C Issuer with respect to the Existing L/Cs shall be deemed to be Reimbursement Obligations of the Company for all purposes of this Agreement.
(c) Notwithstanding anything contained in any L/C Agreement to the contrary: (i) the Company shall pay fees in connection with each L/C as set forth in Section 1.6(a) hereof, (ii) prior to the occurrence and continuance of an Event of Default, unless required by Section 2.4 hereof, the Agent will not call for the funding by the Company of any amount under an L/C issued for the Company’s account, or for any other form of additional collateral security for the Company’s obligations in connection with such L/C under the L/C Agreements, and (iii) prior to the occurrence and continuance of an Event of Default or the Revolving Credit LenderTermination Date, unless required by Section 1.6(a) or Section 2.4 hereof, the Agent will not call for the funding by the Company of an L/C issued for its account prior to being presented with a draft drawn thereunder (or, in the event the draft is a time draft, prior to its due date). If an L/C Issuer issues any L/C with an expiration date that is automatically extended unless such L/C Issuer gives notice that the expiration date will not so extend beyond its then scheduled expiration date, such L/C Issuer will give such notice of non-renewal before the time necessary to prevent such automatic extension if before such required notice date (A) the expiration date of such L/C if so extended would be after the Revolving Credit Termination Date, (B) the Revolving Credit Commitments have been terminated, (C) an Event of Default or Potential Default has occurred and is continuing, or (D) the renewal term for such L/C would exceed one year from the renewal date.
(d) The Agent shall give prompt telecopy notice to each Bank of each issuance of, or amendment to, an L/C specifying the effective date of the L/C or amendment, the amount, the beneficiary, and the expiration date of the L/C, in each case as established originally or through the relevant amendment, as applicable, the account party or parties for the L/C, each Bank’s pro rata participation in such L/C and whether the Agent has classified the L/C as a commercial, performance, or financial L/C for regulatory reporting purposes.
(e) The Banks shall, ratably in accordance with their respective Commitment Percentages, indemnify the L/C Issuers (to the extent not reimbursed by the Company) against any cost, expense (including reasonable counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from such L/C Issuer’s gross negligence or willful misconduct) that the L/C Issuers may suffer or incur in connection with any L/C. The obligations of the Banks under this Section 1.6(e) and all other parts of this Section 1.6 shall survive termination of this Agreement and of all L/C Agreements, and all drafts or other documents presented in connection with drawings thereunder.
(f) The Letter Company’s obligation to reimburse the Reimbursement Obligations as provided in Section 1.7 shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of Credit this Agreement and the relevant L/C Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any L/C or this Agreement, or any term or provision therein, (ii) any draft or other document presented under an L/C proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an L/C Issuer under an L/C against presentation of a draft or other document that does not strictly comply with the terms of such L/C, or (iv) 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, the Company’s obligations hereunder. None of the Agent, the Banks, or the L/C Issuers shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any L/C or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any L/C (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 Issuers; provided that the foregoing shall not be construed to excuse the L/C Issuers from liability to the Company to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Company to the extent permitted by applicable law) suffered by the Company that are caused by such L/C Issuer’s failure to exercise care when determining whether drafts and other documents presented under a L/C comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of an L/C Issuer (as finally determined by a court of competent jurisdiction), such L/C Issuer shall not amend any Letter be deemed to have exercised care in each such determination. In furtherance of Credit if the Letter 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 Credit a L/C, the relevant L/C Issuer would not be permitted at such time to issue such Letter of Credit may, in its amended form under sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms hereof.of such L/C.
(g) The Letter All amounts available for drawing under any or all outstanding L/Cs required under any of Credit Issuer Sections 1.6(a) or 2.4 hereof shall be under no obligation to amend held by the Agent in one or more separate collateral accounts (each such account, and the credit balances, properties, and any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such investments from time to issue time held therein, and any substitutions for such Letter account, any certificate of Credit deposit or other instrument evidencing any of the foregoing and all proceeds of and earnings on any of the foregoing being collectively called the “Collateral Account”) as security for, and for application by the Agent (to the extent available) to, the reimbursement of any payment under any L/C then or thereafter made by the L/C Issuer. The Collateral Account shall be held in its amended form under the name of and subject to the exclusive dominion and control of the Agent for the benefit of the Agent, the Banks, and the L/C Issuer. If and when requested by the Company, the Agent shall invest funds held in the Collateral Account from time to time in direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America with a remaining maturity of one year or less, provided that the Agent is irrevocably authorized to sell investments held in the Collateral Account when and as required to make payments out of the Collateral Account for application to amounts due and owing from the Company to the L/C Issuer, the Agent or the Banks. Subject to the terms hereofof Sections 1.10 and 1.11, or (B) if the beneficiary Company shall have made payment of such Letter of Credit does not accept all obligations referred to above required under Section 2.4, at the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf request of the Revolving Credit Lenders with respect Company the Agent shall release to any Letters of Credit issued by it and the documents associated therewith and Company amounts held in the Letter of Credit Issuer shall have all Collateral Account so long as at the time of the benefits release and immunities (A) provided to after giving effect thereto no Potential Default or Event of Default exists. After all L/Cs have expired or been cancelled, at the Administrative request of the Company, the Agent shall release any remaining amounts held in Section 13 with respect to any acts taken or omissions suffered by the Letter Collateral Account following payment in full in cash 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 Issuerall Reimbursement Obligations.
Appears in 1 contract
Letters of Credit. (a) Subject to and upon the terms and ----------------- conditions herein set forth, the Borrower may request that a Letter of Credit Issuer at any time and from time to time on or after the Initial Borrowing Date and prior to the date which is five Business Days prior to the Revolving Maturity Date issue, for the account of the Borrower and in support of (x) trade obligations of the Borrower and/or its Subsidiaries (each such letter of credit a "Trade Letter of Credit" and, collectively, the "Trade Letters of Credit") and/or (y) such other obligations of the Borrower that are acceptable to the Administrative Agent (each such letter of credit, a "Standby Letter of Credit" and, collectively, the "Standby Letters of Credit" and together with the Trade Letters of Credit and the Existing Letters of Credit the "Letters of Credit") and, 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 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 (the “Letters of Credit” denominated in U.S. dollars and eachissued on a sight basis, a “Letter of Credit”) 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 a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted SubsidiaryAdministrative Agent.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued 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) $5,000,000 or (y) when added to the Letter aggregate principal amount of Credit all Revolving Loans made by Non-Defaulting Lenders and all Swingline Loans then outstanding, the Adjusted Total Revolving Commitment then in effect; at such time 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; (ivx) each Standby Letter of Credit shall have an expiration expiry date occurring not later than one year after such Letter of Credit's date of issuance, provided that any such Letter of Credit may be extendable for successive periods of up to 12 months on terms acceptable to the Letter of Credit Issuer and in no event shall any Standby Letter of Credit have an expiry date occurring later than five Business Days prior to the Revolving Maturity Date and (y) each Trade Letter of Credit shall have an expiry date occurring no later than one year the earlier of (a) 180 days after the date of issuance thereof, unless otherwise agreed upon by thereof or (b) 30 days prior to the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Revolving 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 Notwithstanding the foregoing, in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders)event a Lender Default exists, 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:
(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, unless the Letter of Credit Issuer has entered into arrangements satisfactory arrangements with to it and the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s '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 or Lenders, including by cash collateralizing such Defaulting Lender's or Lenders' Revolving Percentage of the Letter of Credit Issuer would not be permitted at Outstandings.
(d) Annex III hereto contains a description of each letter of credit issued under the Existing Credit Agreement that is outstanding on, and that will continue in effect after, the Initial Borrowing Date and that is issued by a Lender (each, an "Existing Letter of Credit"). Each such time to issue such Existing Letter of Credit in its amended form under the terms hereof.
shall (gx) The constitute a Letter of Credit Issuer shall be under no obligation to amend any Letter issued for all purposes of Credit if (A) this Agreement on 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, Initial Borrowing Date and (By) continue to have the same expiry date as additionally provided herein in effect on the Initial Borrowing Date, subject to renewal on a basis consistent with respect to the Letter of Credit Issuerrenewals permitted by Section 2.01(b).
Appears in 1 contract
Samples: Credit Agreement (Hci Direct 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 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. (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 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, 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, of the Borrower 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 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 lesser of the Total Revolving Credit Commitment and the Borrowing Base 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 (x) that in no event shall such expiration date occur later than the L/C Maturity Date and (y) each Letter of Credit may, upon the request of the Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of twelve (12) months or less (but not beyond 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 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.
(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 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.
(dc) [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.
(fd) 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 IssuerBorrower.
Appears in 1 contract
Samples: Revolving Loan Credit Agreement (McJunkin Red Man Holding 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 . Each letter of credit issued pursuant to the Borrower Original Credit Agreement and outstanding on the Restatement Effective Date shall continue to be outstanding and shall be a co-applicant, and jointly and severally liable with respect to, each Letter deemed to be Letters of Credit issued for hereunder, subject to the account of a Restricted Subsidiaryterms 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 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; (vi) no Letter of Credit shall be issued if any Revolving Credit Lender is a Defaulting Lender, unless such Defaulting Lender’s exposure is reallocated to the Non-Defaulting Lenders, the Letter of Credit Issuer has entered into arrangements reasonably satisfactory to it and the Borrower to eliminate the Letter of Credit Issuer’s risk with respect to the participation in Letters of Credit by all such Defaulting Lenders, including by cash collateralizing, or obtaining a backstop letter of credit from an issuer reasonably satisfactory to the Letter of Credit Issuer to support, each such Defaulting Lender’s Revolving Credit Commitment Percentage of any L/C Participation or a combination thereof; 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 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 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 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 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 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, at On any time and from time to time after the Original Closing Date and Business Day prior to the L/C Revolving Facility Final Maturity Date, the Letter of Credit Issuer agreesIssuer, in reliance upon the agreements of the Revolving Credit other Lenders set forth pursuant to Section 3.4 and Section 3.5, may, in this Section 3its sole discretion, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon issue, at the request ofof the Borrower, and Letters of Credit for the direct or indirect benefit of, account of the Borrower and or any Subsidiary (as specified by the Restricted Subsidiaries, a letter of credit or letters of credit (Borrower in the “Letters of Credit” and each, a “request for such Letter of Credit”) in such form as may be approved by on the Letter of Credit Issuer in its reasonable discretionterms and conditions hereinafter set forth; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, (i) each Letter of Credit issued for shall expire on the account earlier of a Restricted Subsidiary.
(bA) Notwithstanding 18 months after the foregoing, (i) no date of issuance of such Letter of Credit shall be issued (or, in the Stated Amount case of whichany renewal or extension thereof, when added one year after such renewal or extension) and (B) the date that is five (5) Business Days prior to the Letters Revolving Facility Final Maturity Date; (ii) the Borrower may not request any Letter of Credit Outstanding at if, after giving effect to such timeissuance, (A) the aggregate Letter of Credit Exposure 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 aggregate Revolving Credit Exposure of such Letter of Credit does not accept all Lenders would exceed the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf amount of the Total Revolving Credit Lenders with respect to any Letters of Credit issued by it Commitment and (iii) the documents associated therewith Borrower shall not request, and the Letter of Credit Issuer shall have all no obligation to issue, any Letter of Credit the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect proceeds of which would be made available to any acts taken Person (I) to fund any activity or omissions suffered business of or with any Sanctioned Person or in any Sanctioned Countries, that, at the time of such funding, is the subject of any Sanctions or (II) in any manner that would result in a violation of any Sanctions by any party to this Agreement. Each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Letter of Credit Issuer without recourse a participation in connection each Letter of Credit equal to such Xxxxxx’s Pro Rata Share of the aggregate amount available to be drawn under such Letter of Credit (x) on the Closing Date with respect to all Existing Letters of Credit issued by it or proposed and (y) on the date of issuance with respect to be issued by it and Issuer Documents pertaining to such all other Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Credit. Each issuance of a Letter of Credit Issuer with respect shall be deemed to such acts or omissions, and (B) as additionally provided herein with respect utilize the Revolving Commitment of each Lender by an amount equal to the Letter amount of Credit Issuersuch participation.
Appears in 1 contract
Samples: Credit Agreement (Air Transport Services Group, 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 from the Original Closing Agreement Effective Date and through the day that is ninety (90) 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 substantially in the form of Exhibit G 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 Liabilities 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 not exceed the Letter of Credit Commitment, (iii) in no event shall the sum of (A) the Revolving Credit Loans and Swingline Loans Outstanding, and (B) the amount of Letter of Credit Liabilities (after giving effect to all Letters of Credit requested) exceed the Aggregate Revolving Credit Commitment, (iv) in no event shall the Outstanding principal amount of the Loans and Letter of Credit Liabilities (after giving effect to any requested Letters of Credit) exceed the lesser of the Aggregate Commitment then or the Borrowing Base Availability, (v) the conditions set forth in effect; Section 5.1 (iiwith respect to any Letter of Credit issued on the Agreement Effective Date) subject and Section 5.2 (with respect to clause the issuance of any other Letter of Credit) shall have been satisfied or waived, and (fvi) belowin no event shall any amount drawn under a Letter of Credit be available for reinstatement or a subsequent drawing under such Letter of Credit. Notwithstanding anything to the contrary contained in this Section 2.7, 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 Section 2.11 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 Section 5.1 (with respect to any Letter of Credit issued on the Agreement Effective Date) and Section 5.2 (with respect to the issuance of any other Letter of Credit) have been satisfied or waived unless it receives written notice from a Revolving Credit Lender that such conditions have not been satisfied or waived. 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. Unless the Issuing Lender otherwise consents, the term of any Letter of Credit shall be issued the Stated Amount not exceed a period of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of commencing on 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 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, unless otherwise agreed upon by subject to extension pursuant to an “evergreen” clause reasonably acceptable to the Administrative Agent and Issuing Lender (but in any event the term shall not extend beyond five (5) Business Days prior to the Revolving Credit Maturity Date). The amount available to be drawn under any Letter of Credit Issuershall reduce on a dollar-for-dollar basis the amount available to be drawn under the Aggregate Commitment as a 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 reasonably approve) prior to the date upon which the requested Letter of Credit is to be issued. Each such Letter of Credit Request shall contain a certification by an Authorized Officer that no Default exists after giving effect to the issuance of such Letter of Credit. The Borrower shall further deliver to the Issuing Lender such additional applications (which application as of the date hereof is in the form of Exhibit G attached hereto) and documents as the Issuing Lender may reasonably 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 no the event of any conflict, the terms of this Agreement shall such expiration date occur later than control.
(c) The Issuing Lender shall, subject to the L/C Maturity Date; conditions set forth in this Agreement, issue a requested Letter of Credit on or before five (v5) each Business Days following receipt of the documents last due pursuant to Section 2.7(b). Each Letter of Credit shall be denominated in Dollars or form and substance reasonably satisfactory to the Issuing Lender in its reasonable discretion.
(d) Upon the issuance of a Letter of Credit, each Revolving Credit Lender shall be deemed to have purchased a participation therein from Issuing Lender in an Alternative Currency; (vi) no amount equal to its 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 if it would be illegal under affected by 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 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 calculated at the rate of one-eighth of one percent (0.125%) not in effect on 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 (which fee shall not be less than $1,500 in any event) and an administrative charge of $250, and (ii) for the accounts of the Revolving Credit Lenders that are Non-Defaulting Lenders (including the Issuing Lender) in accordance with their respective percentage shares of participation in such Letter of Credit, a Letter of Credit Issuer applicable fee calculated at the rate per annum equal to letters the LIBOR Applicable Margin in effect from time to time on the face amount of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is during the term of this Agreement. Such fees shall be payable in an initial Stated Amount less than $100,000 quarterly installments in arrears with respect to each Letter of Credit on the first day of each calendar quarter following the date of issuance and continuing on each quarter or portion thereof thereafter, as applicable, or on any earlier date on which the Dollar Equivalent thereof, in Revolving Credit Commitments shall terminate and on the case expiration or return of a commercial any Letter of Credit. In addition, or $10,000 or the Dollar Equivalent thereofBorrower shall pay to Issuing Lender for its own account within thirty (30) days after written demand of Issuing Lender the standard issuance, in the case of a standby Letter of Credit;
(iv) such Letter documentation and service charges for Letters 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 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 reimburse the Issuing Lender by having such amount drawn treated as an Outstanding Revolving Credit Floating Rate Loan under this Agreement (the Borrower being deemed to have requested a Revolving Credit Floating 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 Floating Rate Loan under this Agreement) and the Administrative Agent shall promptly notify each Revolving Credit Lender by facsimile, telephone (confirmed in writing) or other similar means of transmission, and each Revolving Credit Lender shall promptly and unconditionally pay to the Administrative Agent, for the Issuing Lender’s own account, an amount equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage of such Letter of Credit if (to the extent of the amount drawn). The Borrower further hereby irrevocably authorizes and directs the Administrative Agent to notify the Revolving Credit Lenders of the Borrower’s intent to convert such Floating 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 Revolving Credit Lenders of their advance under this Section 2.7(f), provided that the making of such LIBOR Rate Loan shall not be in 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 Administrative Agent forthwith on demand, together with interest thereon, for each day from the date on which such draw was funded until the date on which such amount is paid to the Administrative Agent, at the Federal Funds Effective Rate until three (3) days after the date on which the Administrative 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 Loans, amounts due with respect to its participations in Letters of Credit and any other amounts due to it hereunder to the Administrative Agent to fund the amount of any drawn Letter of Credit Issuer would which such Revolving Credit Lender was required to fund pursuant to this Section 2.7(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 Administrative Agent in such amount shall not relieve any other Revolving Credit Lender of its obligation hereunder to make funds available to the Administrative Agent pursuant to this Section 2.7(f).
(g) If after the issuance of a Letter of Credit pursuant to Section 2.7(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 permitted at refinanced as a Revolving Credit Loan, each Revolving Credit Lender will, on the date such time Revolving Credit Loan pursuant to issue Section 2.7(f) was to have been made, purchase an undivided participation interest in such Letter of Credit in an amount equal to its amended form under Revolving Credit Commitment Percentage of the terms hereofamount 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.
(gh) The 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 a Letter of Credit Issuer shall and thereafter the Issuing Lender receives any payment on account thereof, then the Issuing Lender will distribute to 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 under no obligation returned, such Revolving Credit Lender will return to amend 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 the Administrative 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 any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of any beneficiary of any Letter of Credit to comply fully with the conditions required in order to demand payment under a Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable or otherwise; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document or draft required by or from a beneficiary in order to make a disbursement under a Letter of Credit or the proceeds thereof; (vii) for the misapplication by the beneficiary of any Letter of Credit of the benefits proceeds of any drawing under such Letter of Credit; and immunities (Aviii) provided for any consequences arising from causes beyond the control of the Administrative Agent or any Lender. None of the foregoing will affect, impair or prevent the vesting of any of the rights or powers granted to the Administrative Agent Agent, Issuing Lender or the Lenders hereunder. In furtherance and extension and not in Section 13 with respect to limitation or derogation of any acts of the foregoing, any act taken or omissions suffered omitted to be taken by the Administrative Agent, Issuing Lender or the other Lenders in good faith will be binding on the Borrower and will not put the Administrative Agent, Issuing Lender or the other Lenders under any resulting liability to the Borrower; provided nothing contained herein shall relieve the Issuing Lender, the Administrative Agent or any Lender for liability incurred by any such party arising solely out of the gross negligence or willful misconduct of such party in respect of a Letter of Credit Issuer as determined by a court of competent jurisdiction 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 omissionsa final, and (B) as additionally provided herein with respect to the Letter of Credit Issuernon-appealable judgment.
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 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 thereofthereof (except as set forth in Section 3.2(d)), unless or as 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 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 Letters 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 forthforth in this Agreement, at any time and from time to time after from the Original Closing Date and through the day that is thirty (30) days prior to the L/C Revolving Credit Maturity Date, the Letter applicable Issuing Lender shall issue such Letters of Credit Issuer agrees, in reliance as the Borrowers may request upon the agreements delivery of a written request in 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 form of credit or letters of credit Exhibit E hereto (the “Letters of Credit” and each, a “Letter of Credit Request”), together with an executed Availability Certificate, to such 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”) in such form as may be approved by , the aggregate Letter of Credit Liabilities shall not exceed the aggregate Letter of Credit Commitments and the Letter of Credit Issuer in its reasonable discretion; provided that Liabilities of the Borrower applicable Issuing Lender shall be a co-applicant, and jointly and severally liable with respect to, each not exceed such Issuing Lender’s Letter of Credit issued for Commitment, which Letter of Credit Commitment shall be automatically increased on a pro rata basis with increases in the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoingaggregate Revolving Credit Commitments, (iiii) in no event shall the aggregate Exposure (after giving effect to all Letters of Credit requested) exceed the Total Commitment or the Facility Available Amount, (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 the applicable Issuing Lender may, in its sole discretion, be entitled to waive this condition), unless the applicable Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to such Issuing Lender (in its sole discretion) with the Borrowers or such Defaulting Lender to eliminate such Issuing Lender’s actual or potential Fronting Exposure with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Letter of Credit Liabilities as to which such 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 applicable Issuing Lender may assume that the 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 on behalf of the Borrowers by an Authorized Officer of the Borrowers. The Issuing Lenders shall be entitled to conclusively rely on such Person’s authority to request a Letter of Credit on behalf of the Borrowers. The Issuing Lenders shall have no duty to verify the authenticity of any signature appearing on a Letter of Credit Request. The Borrowers assume all risks with respect to the use of the Letters of Credit. Unless the applicable Issuing Lender and the Required Lenders otherwise consent, 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, unless otherwise agreed upon by the Administrative subject to extension pursuant to an “evergreen” clause reasonably acceptable to Agent and the applicable Issuing Lender (but in any event the term shall not extend beyond thirty (30) days prior to the Revolving Credit Maturity Date unless the Borrowers have provided to Agent cash collateral reasonably acceptable to 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 aggregate Revolving Credit Commitments as a Revolving Credit Loan.
(vb) each Each Letter of Credit Request shall be submitted to the applicable Issuing Lender and Agent (if Agent is not the applicable Issuing Lender) at least three (3) Business Days (or such shorter period as such 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 Parent Guarantor that the Borrowers 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 Borrowers shall further deliver to the applicable Issuing Lender such additional applications (which application as of the date hereof is in the form of Exhibit I hereto) and documents as such 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 applicable Issuing Lender shall, subject to the conditions set forth in this Agreement, issue the Letter of Credit on or before three (3) 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 such Issuing Lender in its reasonable discretion.
(d) Upon the beneficiary 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 the applicable Issuing Lender, and with respect to any Existing Letters of Credit, each Revolving Credit Lender shall be deemed to have purchased a participation therein from the applicable Existing Issuing Lender on the Closing Date, in each case in an amount equal to its favor; and (vii) no respective 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 Borrowers shall pay to the applicable Issuing Lender (i) for which the its own account, a Letter of Credit Issuer is not otherwise compensated hereunder) not in effect fronting fee with respect to each Letter of Credit, at a rate equal to one eighth of one percent (0.125%), 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 and (ii) for the accounts of the Letter Revolving Credit Lenders (including such Issuing Lender) in accordance with their respective percentage shares of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, participation in 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 a Letter of Credit fee calculated at the Dollar Equivalent thereof, in rate per annum equal to the case of a standby Applicable Margin then applicable to LIBOR Rate Loans on the amount available to be drawn under 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 (1st) 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 (if such letter of credit is outstanding less than a full quarter, such fee shall be prorated for the issuance date period of time outstanding). In addition, the Borrowers shall pay to the applicable Issuing Lender for its own account within ten (10) Business Days of demand of such requested Letter Issuing Lender the standard issuance, documentation and service charges applicable to all or substantially all similarly situated borrowers for Letters of Credit issue letters of credit in the requested currency;
(vi) issued from time to time by 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 Borrowers shall not amend any reimburse the applicable Issuing Lender by having such amount drawn treated as an outstanding Base Rate Loan under this Agreement (the Borrowers being deemed to have requested a Base Rate Loan on such date in an amount equal to the amount of such drawing and such amount drawn shall be treated as an outstanding Base Rate Loan under this Agreement) and Agent shall promptly notify each Revolving Credit Lender by telex, telecopy, telegram, telephone (confirmed in writing) or other similar means of transmission, and each Revolving Credit Lender shall promptly and unconditionally pay to Agent, for the applicable Issuing Lender’s own account, an amount equal to such Revolving Credit Lender’s Commitment Percentage of such Letter of Credit if (to the extent of the amount drawn). The Borrowers further hereby irrevocably authorize and direct Agent to notify the Revolving Credit Lenders of the Borrowers’ 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 Revolving Credit 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 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 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 Agent, at the Federal Funds Effective Rate until three (3) days after the date on which 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 Agent to fund the amount of any drawn Letter of Credit Issuer would 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 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 Revolving Credit Lender to make funds available to Agent in such amount shall not relieve any other Revolving Credit Lender of its obligation hereunder to make funds available to Agent pursuant to this §2.10(f).
(g) If after the issuance of a Letter of Credit pursuant to §2.10(c) by an 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 permitted at refinanced as a Revolving Credit Loan, each Revolving Credit Lender will, on the date such time Revolving Credit Loan pursuant to issue §2.10(f) was to have been made, purchase an undivided participation interest in such Letter of Credit in an amount equal to its amended form under Commitment Percentage of the terms hereofamount of such Letter of Credit. Each Revolving Credit Lender will immediately transfer to such Issuing Lender in immediately available funds the amount of its participation and upon receipt thereof such 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.
(gh) The Whenever at any time after an Issuing Lender has received from any Revolving Credit Lender any such Revolving Credit Lender’s payment of funds under a Letter of Credit Issuer shall and thereafter such Issuing Lender receives any payment on account thereof, then such Issuing Lender will distribute to 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 such Issuing Lender is required to be under no obligation returned, such Revolving Credit Lender will return to amend such Issuing Lender any portion thereof previously distributed by such 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 Borrowers assume all risks of the acts, omissions, or misuse of any Letter of Credit Issuer shall act on behalf by the beneficiary thereof. None of Agent, any Issuing Lender or any Lender will be responsible for (i) the Revolving Credit Lenders with respect to form, validity, sufficiency, accuracy, genuineness or legal effect of 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, any Issuing Lender or 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, any Issuing Lender or any other Lender in good faith will be binding on the Borrowers and will not put Agent, any Issuing Lender or any other Lender under any resulting liability to the Borrowers; provided nothing contained herein shall relieve any Issuing Lender, Agent or any other Lender for liability to the Borrowers arising as a result of the gross negligence or willful misconduct of such Issuing Lender, Agent or such Lender, as applicable, as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods.
Appears in 1 contract
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 $100,000,000 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 1 contract
Letters of Credit. (a) Subject to and upon the terms and ----------------- conditions herein set forth, the Borrower may request that a Letter of Credit Issuer at any time and from time to time on or after the Initial Borrowing Date and prior to the date which is thirty Business Days prior to the Revolving Loan Maturity Date issue, for the account of the Borrower and in support of (i) trade obligations of the Borrower and/or its Subsidiaries, if any (each such letter of credit a "Trade Letter of Credit" and, collectively, the "Trade Letters of Credit") and/or (ii) workers' compensation, insurance programs or such other obligations of the Borrower that are reasonably acceptable to the Administrative Agent (each such letter of credit, a "Standby Letter of Credit" and, collectively, the "Standby Letters of Credit" and together with the Trade Letters of Credit the "Letters of Credit") and, 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 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 (the “Letters of Credit” and eachissued on a sight basis, a “Letter of Credit”) in such form as may be approved by the such Letter of Credit Issuer in its reasonable discretion; provided that and the Borrower Administrative Agent. All Letters of Credit shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiarydenominated in U.S. dollars.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued 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) $5,000,000 or (y) when added to the Letter aggregate principal amount of Credit all Revolving Loans made by Non-Defaulting Lenders and all Swingline Loans then outstanding, the Adjusted Total Revolving Commitment then in effect; at such time 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; (ivx) each Standby Letter of Credit shall have an expiration expiry date occurring not later than one year after such Letter of Credit's date of issuance, provided that any -------- such Letter of Credit may be extendible for successive periods of up to 12 months on terms acceptable to the Letter of Credit Issuer and in no event shall any Standby Letter of Credit have an expiry date occurring later than five Business Days prior to the Revolving Loan Maturity Date and (y) each Trade Letter of Credit shall have an expiry date occurring no later than one year the earlier of (a) 180 days after the date of issuance thereof, unless otherwise agreed upon by thereof or (b) 30 days prior to the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Revolving Loan Maturity Date; .
(vc) each Letter of Credit shall be denominated Notwithstanding the foregoing, in Dollars or an Alternative Currency; (vi) the event a Lender Default exists, 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 required 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 unless 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 arrangements satisfactory arrangements with to it, the Administrative Agent and the Borrower or such Revolving Credit Lender to eliminate such Letter of Credit Issuer's risk with respect to the participation in Letters of Credit of the Defaulting Lender or Lenders, including by cash collateralizing such Defaulting Lender's or Lenders' Revolving Percentage of the Letter of Credit Issuer’s risk with respect to such Revolving Credit LenderOutstandings.
(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 (Unilab Corp /De/)
